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Gohar Textile Mills | 208 Chak Road, Zia Town, Faisalabad |
http://eur-lex.europa.eu/Le [...] 14:01:ES:HTML

Gohar Textile mills | 208 Chak Road, Zia Town, Faisalabad |
http://eur-lex.europa.eu/Le [...] 14:01:EN:HTML

Última actualización: 2009-01-01
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New Town Development Corporations (Corporaciones de desarrollo de nuevos centros urbanos),

New Town Development Corporations,

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Cuando se sospecha una fractura mandibular aislada, la evaluación radiográfica rutinaria puede consistir en una radiografía panorámica y una vista postero- anterior adicional de la mandíbula, por lo general una radiografía de de boca-abierta de Towne.21 Una radiografía panorámica es la imagen individual más completa y por lo general permite la visualización satisfactoria de todas las regiones de la mandíbula (cóndilo, ramus, cuerpo y sínfisis) (Fig.

When an isolated mandibular fracture is suspected, the routine radiographic assessment may consist of a panoramic radiograph and one additional postero-anterior view of the mandible, usually an open-mouth Towne's radiograph.21 A panoramic radiograph is the single most comprehensive image and usually allows for satisfactory visualization of all regions of the mandible (condyle, ramus, body, and symphysis) (Fig. 42.6).

Última actualización: 2014-04-17
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Advertencia: Esta alineación puede ser errónea
Le rogamos que la borre si se lo parece.

La vista de Towne añade otra dimensión anatómica y es especialmente útil para descartar las fracturas subcondíleas.

The Towne's view adds another anatomic dimension and is especially useful in ruling out subcondylar fractures.

Última actualización: 2014-04-17
Tema: Medicina
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Advertencia: Esta alineación puede ser errónea
Le rogamos que la borre si se lo parece.

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

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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

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Trial Chamber I (“Trial Chamber” or “Chamber”) of the International Criminal Court (“Court” or “ICC”), in the case of The Prosecutor v. Thomas Lubanga Dyilo (“Lubanga case”), issues the following Judgment pursuant to Article 74 of the Statute: I. THE CHARGES 1. On 29 January 2007, Pre-Trial Chamber I issued its Decision on the Confirmation of Charges. 1 It confirmed that there was sufficient evidence to establish substantial grounds to believe that: Thomas Lubanga Dyilo is responsible, as co-perpetrator, for the charges of enlisting and conscripting 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)(b)(xxvi) and 25(iii)(a) of the Statue from early September 2002 to 2 June 2003.2 Additionally, the Pre-Trial Chamber confirmed that there was sufficient evidence to establish substantial grounds to believe that: Thomas Lubanga Dyilo is responsible, as co-perpetrator, for the charges of enlisting and conscripting 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) of the Statute from 2 June to 13 August 2003.3 2. Under the Rome Statute (“Statute”)4 and the Rules of Procedure and Evidence (“Rules”), the charges include a description of the relevant facts and circumstances, and the facts are legally characterised. Therefore the charges are made up of factual and legal elements. 3. Pursuant to Article 74(2) of the Statute, the judgment “shall not exceed the facts and circumstances, described in the charges and any amendments to the charges”. The charges and any amendments thereto establish the factual scope of the Decision pursuant to Article 74(2). 4. By Regulation 55(1) of the Regulations of the Court (“Regulations”), “the 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 under articles 25 and 28”. However, it shall not exceed the facts and circumstances described in the charges and any amendments to the charges. 5. Regulation 52(b) of the Regulations establishes what needs to be included in the document containing the charges: “[a] statement of the facts, including the time and place of the alleged crimes, which provides a sufficient legal and factual basis to bring the person or persons to trial, including relevant facts for the exercise of jurisdiction by the Court”. 6. The Appeals Chamber has defined what are “the facts” in this context: In the view of the Appeals Chamber, the term 'facts' refers to the factual allegations which support each of the legal elements of the crime charged. These factual allegations must be distinguished from the evidence put forward by the Prosecutor at the confirmation hearing to support a charge (article 61 (5) of the Statute), as well as from background or other information that, although contained in the document containing the charges or the confirmation decision, does not support the legal elements of the crime charged. The Appeals Chamber emphasises that in the confirmation process, the facts, as defined above, must be identified with sufficient clarity and detail, meeting the standard in article 67 (1) (a) of the Statute.5 7. It follows that the accused cannot be convicted on a basis that exceeds the factual circumstances that were identified in the Confirmation Decision as supporting each of the legal elements of the crimes charged. 8. The two paragraphs of the Decision on the Confirmation of Charges cited above contain the legal characterisation of the facts, including the mode of liability, the temporal framework of the crimes and the fact that the alleged conscription and enlistment was “into” the Force Patriotique pour la Liberation du Congo (“FPLC”). The Pre-Trial Chamber, in this section, did not expressly identify the facts that supported each of the legal elements of the crimes charged. However, they were referred to in other sections of the Decision and the Trial Chamber has ensured that the present Judgment does not exceed the facts and circumstances established by the Pre-Trial Chamber. II.BRIEF CASE HISTORY, JURISDICTION AND PARTICIPATION BY VICTIMS Jurisdiction 9. Pursuant to Article 19 of the Statute, the “Court shall satisfy itself that it has jurisdiction in any case brought before it.”6 The Democratic Republic of the Congo (“DRC”) became a State party on 11 April 2002 and, pursuant to Article 14, President Kabila referred the situation in the DRC to the Prosecutor in March 2004. 7 Pre-Trial Chamber I concluded that the case falls within the Court’s jurisdiction,8 and the Appeals Chamber confirmed the Pre-Trial Chamber’s Decision on the accused’s challenge to the jurisdiction of the Court.9 The personal, temporal, territorial and subject-matter elements that are relevant to the Court’s jurisdiction have not altered since the Decision on the Confirmation of the Charges, and the issue has not been raised by the parties or any State before the Trial Chamber. Case history 10. The first status conference before the Trial Chamber was held on 4 September 2007, and thereafter there were 54 status conferences prior to the commencement of the trial.10 A list of the main decisions of the Chamber is set out in Annex A. However, it is appropriate to mention in this section four major procedural events which had a significant impact on the course of the proceedings: i) On 13 June 2008, the Chamber stayed the proceedings inter alia as a consequence of the failure by the Office of the Prosecutor (“prosecution” or “OTP”) to disclose a significant body of potentially exculpatory evidence covered by certain confidentiality agreements that had been entered into on the basis of Article 54(3)(e) of the Statute.11 After a considerable delay, the materials that had been withheld were disclosed, and following a review of them by the Chamber, the stay of proceedings was lifted on 18 November 2008.12 The prosecution called its first witness on 28 January 2009 after the parties and legal representatives of the victims had completed their opening statements on 26 and 27 January 2009.13 ii) The presentation of oral evidence by the prosecution concluded on 14 July 2009, 14 and thereafter the Majority of the Chamber (Judge Fulford dissenting) issued a Decision notifying the parties and participants that the legal characterisation of the facts may be subject to change, pursuant to Regulation 55 of the Regulations of the Court.15 The Chamber granted leave to appeal the Decision on 3 September 200916 and adjourned the presentation of evidence and any further consideration of Regulation 55 pending the outcome of the interlocutory appeal.17 The Appeals Chamber issued its judgment reversing the 14 July 2009 Decision on 8 December 2009. 18 The presentation of evidence resumed on 7 January 2010 with the testimony of the third expert called by the Chamber.19 28 witnesses testified before the Chamber between 7 January and 8 July 2010, including 3 victims called by their legal representative and 3 prosecution witnesses (see below). The presentation of the defence evidence commenced on 27 January 2010. iii) On 8 July 2010, the Trial Chamber imposed a second stay of proceedings because of the prosecution’s non-compliance with an order for the disclosure of the name of Intermediary 143. 20 The Appeals Chamber concluded that the orders of a Chamber are binding and the Prosecutor is obliged to comply with them (the Prosecutor’s “wilful non-compliance constituted a clear refusal to implement the orders of the Chamber”), 21 but it reversed the stay of proceedings on 8 October 2010 (indicating that a different sanction, namely a financial penalty, should have been considered).22 The presentation of evidence resumed on 25 October 2010. Seven witnesses testified between 25 October and 1 December 2010. iv) On 10 December 2010, the defence filed an application seeking a permanent stay of proceedings, arguing, inter alia, that four of the intermediaries used by the prosecution had prepared false evidence and the Prosecutor was aware that some of the evidence connected to these individuals was untruthful, and moreover he failed in his obligation to investigate its reliability.23 Prior to receiving the application, the Chamber had heard 30 witnesses relevant to this issue, including 3 intermediaries. The Chamber issued a Decision dismissing the defence application on 23 February 2011. 24 The presentation of the defence evidence resumed on 28 March 2011 and five final defence witnesses testified before the evidence formally closed on 20 May 2011. 11. As set out above, the presentation of evidence in the case started on 28 January 2009 and was formally closed on 20 May 2011.25 The Trial Chamber heard 67 witnesses, and there were 204 days of hearings.26 The prosecution called 36 witnesses, including 3 experts,27 and the defence called 24 witnesses.28 Three victims were called as witnesses following a request from their legal representatives. Additionally the Chamber called four experts.29 The prosecution submitted 368 items of evidence, the defence 992, and the legal representatives 13 (1373 in total). In addition to the written submissions, 30 the oral closing arguments of the parties and participants were heard on 25 and 26 August 2011. Since 6 June 2007, when the record of the case was transmitted to the Trial Chamber,31 the Chamber has delivered 275 written decisions and orders and 347 oral decisions.32 12. Article 76(2) provides that “the Trial Chamber may on its own motion and shall, at the request of the Prosecutor or the accused, hold a further hearing to hear any additional evidence or submissions relevant to the sentence”. The defence requested that the Chamber holds an additional hearing in the event of a conviction.33 In an oral Decision delivered on 25 November 2008, the Chamber decided there would be a separate sentencing hearing if the accused is convicted.34 Participation by victims 13. The Rome Statute permits victims to participate in proceedings before the ICC. In accordance with Article 68(3) of the Statute, victims have participated in the present case, and in particular they have applied to introduce evidence, they have questioned witnesses and they have advanced written and oral submissions (with the leave of the Chamber), assisted by their legal representatives. 14. In the “Decision on victims’ participation” (Judge Blattmann separately and partially dissenting), the Chamber issued general guidelines concerning the participation by victims during the trial.35 This Decision was appealed. 36 The Appeals Chamber partially confirmed and partially reversed the Decision.37 The following overall criteria have been established in the decisions of the Trial and the Appeals Chambers: i) Bearing in mind the current situation in the DRC and the potential difficulties in obtaining or producing copies of official identity documents, applicants may establish proof of their identity by way of a range of official and non-official documents.38 ii) Using Principle 8 of the Basic Principles 39 as guidance, a victim is someone who experienced personal harm, individually or collectively with others, directly or indirectly, in a variety of different ways such as physical or mental injury, emotional suffering or economic loss. 40 iii) Participation by victims at trial will first and foremost take place by way of the procedure established in Rule 89(1) of the Rules. iv) Only those who suffered harm as a result of the crimes charged may be considered victims in the case. Applicants need to demonstrate a link between the harm they suffered and the crimes faced by the accused,41 and they should demonstrate in written applications that they are victims of these offences. v) “[P]ursuant to Article 68(3) of the Statute, victims will first have to demonstrate that their personal interests are affected by the trial in order to be permitted to present their views and concerns at stages of the proceedings determined to be appropriate by the Court and in a manner which is not prejudicial or inconsistent with the rights of the accused and a fair and impartial trial.” 42 Participation is to be decided on the basis of the evidence or issues under consideration at any particular stage in the proceedings and victims wishing to participate should set out in a discrete written application the nature and the detail of the proposed intervention. 43 vi) In accordance with Rule 131(2) of the Rules, victims have the right to consult the record of the proceedings, including the index, subject to any restrictions concerning confidentiality and the protection of national security information. In principle, victims have the right to access and receive notification of all public filings and those confidential filings which concern them (as identified by the parties), insofar as this does not breach any protective measures that are in place. 44 vii)Victims may request the Chamber to use its broad powers to call all the material it considers relevant for the determination of the truth, in order that the evidence identified by victims concerning the guilt or innocence of the accused is introduced (to the extent appropriate). Victims may tender evidence, examine witnesses and challenge the admissibility or relevance of evidence during the trial so long as: (i) they submit a discrete application; (ii) notice is given to the parties; (iii) the personal interests of one or more victims are affected by the evidence; (iv) there is compliance with their “disclosure obligations and [any] protection orders”;45 (v) the Chamber determines this course is appropriate and (vi) there is consistency with the rights of the accused and a fair trial. 46 viii) Victims have the right to participate in public hearings and to file written submissions, and they may be permitted to participate in closed or ex parte hearings or to file confidential or ex parte submissions, depending on the circumstances. 47 ix) Victims’ views and concerns may be presented by a common legal representative in order to provide for the fairness and expeditiousness of the trial.48 x) Victims may apply to the Chamber for leave to call evidence relating to reparations during the trial under Regulation 56 of the Regulations of the Court.49 xi) Anonymous victims may participate in the trial. However, the greater the extent and significance of the proposed participation, the more likely it will be that the Chamber will require the victim to identify himself or herself. 50 15. The total number of individual victims authorised to participate in the proceedings is 129 (34 female and 95 male victims).51 Once the Chamber received the parties’ observations on their applications and reviewed the reports prepared by the Victims Participation and Reparations Section under Regulation 86(5) of the Regulations of the Court, 52 it concluded, on a prima facie basis, that each of these individuals were victims of the crimes charged against the accused.53 In accordance with the Statute the Trial Chamber examined, on a caseby- case basis, the link between the harm allegedly suffered, the victims’ personal interests and the charges against the accused. 16. While all 129 victims claimed they had suffered harm as a result of the enlistment or conscription of children under the age of 15, or their use to participate actively in the hostilities, many also alleged they had suffered harm as a result of other crimes, such as sexual violence and torture or other forms of ill treatment, which are not the subject of charges against the accused.54 17. The victims who have been granted permission to participate in this trial are, in the main, alleged former child soldiers, although some are the parents or relatives of former child soldiers and one is a school. Since some of the victims were still children when they submitted their applications, their parents, relatives or others have acted on their behalf. The Chamber accepted that the individual who acted for a child did not need to be their parent or legal guardian – indeed it permitted children to participate directly without an adult representing them.55 18. Many of the victims in the case were granted protective measures and, in particular, anonymity because of their vulnerable position living in areas of ongoing conflict. Consequently, of 129 victims, the identities of only 23 have been disclosed to the parties and participants in the proceedings. However, the Chamber found that: [w]hile the safety and security of victims is a central responsibility of the Court, their participation in the proceedings cannot be allowed to undermine the fundamental guarantee of a fair trial. The greater the extent and the significance of the proposed participation, the more likely it will be that the Chamber will require the victim to identify himself or herself. Accordingly, when resolving a request for anonymity by a victim who has applied to participate, the Chamber will scrutinise carefully the precise circumstances and the potential prejudice to the parties and other participants. […]56 19. The Chamber formulated certain key principles for those individuals with dual status as victims and witnesses.57 Whilst the Chamber indicated that their security should not be compromised, it also established that individuals with dual status do not accrue rights above and beyond those of someone who is solely a victim or a witness.58 20. Common legal representatives have appeared in court for the participating victims, who have been divided into two groups represented by two teams of external counsel. 59 Additionally, the Office of Public Counsel for Victims (“OPCV”) was authorised to continue representing four dual status victims.60 Through their legal representatives the victims made opening statements, 61 examined witnesses62 and requested leave to introduce evidence.63 They were permitted to make written and oral submissions. 21. The Chamber authorised three victims to give evidence as witnesses during the trial and evidence was presented on behalf of a school.64 These three witnesses, who testified in January 2010, were granted incourt protective measures that included voice and face distortion and pseudonyms.65 The position of these three witnesses is discussed in greater detail below. III. OVERVIEW OF THE PARTIES AND PARTICIPANTS SUBMISSIONS A. PROSECUTION SUBMISSIONS 22. The principal factual allegations against the accused commence on 15 September 2000 when it is suggested he became President of the Union des Patriotes Congolais (“UPC”). It is said that he held this position at all material times thereafter. His ambition is described as gaining power in Ituri, but since he was leading a rebel movement this was unachievable without a military force. In unequivocal terms, it is the prosecution’s assertion that the accused agreed with others to gain power in Ituri through the recruitment of “young persons”. It is alleged that the co-perpetrators were establishing an army, notwithstanding their public promise to end years of ethnic fighting.66 23. The prosecution asserts that in reality the recruitment began when military training in Uganda became a possibility in 2000. The accused and his co-perpetrators launched the first wave of young Hema fighters who would later become the armed wing of the UPC. This led the accused and his co-perpetrators to become closely associated with the UPC and the Hema militia (which are said to have been indistinguishable) and it is alleged they used children to gain power in Ituri.67 24. His Hema connections enabled Thomas Lubanga to cultivate an external profile as a key political player in Iturian politics, and this included the declaration he sent to the political authorities of Uganda on behalf of the co-perpetrators and others who had revolted against the Armee Populaire Congolaise (“APC”), the armed wing of the Rassemblement Congolais pour la Democratie – Kisangani/Mouvement de Liberation (“RCD-ML”),68 in the summer of 2000. The accused became Minister of Defence in the RCD-ML, the government then in power in the DRC, in 2001. It is alleged that together with his co-perpetrators he broke away from the RCD-ML in April 2002.69 25. The UPC and its military wing, the FPLC,70 took power in Ituri in September 2002. It is said that at this stage Thomas Lubanga acknowledged that the UPC/FPLC had had a joint military and political profile since 2000. In particular, in April and August 2002 he recognised the group’s military actions, and in October 2002 he wrote to the DRC government asking for national recognition, having described his power and territorial reach in Ituri.71 26. The need for a more substantial army led to increased recruitment of young people – regardless of age – by targeting schools and the general public, and through coercive campaigns in the villages. It is suggested that during the relevant period this inevitably led to the conscription, enlistment and use of children below 15 years of age, even if they were not specifically targeted. Furthermore, no attempt was made to check the ages of the recruits.72 27. The FPLC – which, as set out above, became the UPC’s military wing – was formally created in September 2002. The prosecution argues this was the final phase of the execution of the common plan to take over Ituri by military means. 73 It is suggested that it was a professional body, with trained officers and soldiers. It had an intricate and organised hierarchy, with headquarters in Bunia; three sectors and several brigades (with approximately 1000 soldiers in each); and up-todate communications systems.74 28. During the following 11 months, Thomas Lubanga (who it is contended was jointly President of the UPC and Commander-in-chief of the FPLC) directed the military to complete the conquest of Ituri. He is said to have given the orders for the battles at Mongbwalu, Bambi, Lipri and Kobu, and, by controlling the finances, it is suggested he ensured that the military was properly equipped with funds, ammunition, weapons and vehicles.75 29. It is the prosecution’s submission that, together with his Chief of Staff and other military commanders, the accused orchestrated campaigns in order to recruit soldiers of all ages, including those below the age of 15 years who were trained and sent to the front line.76 30. The accused gained, and thereafter used, the support of Gegere wise men to raise awareness in the villages. The FPLC recruited children by abduction, and it put pressure on the population to permit recruitment and to accept the enlistment of children during the recruitment campaigns.77 31. Eric Mbabazi, a G5 and top military commander who headed the morale and discipline division of the FPLC, is alleged to have been particularly responsible for recruiting children. He reported any difficulties that arose to his superiors.78 32. Following their recruitment, the children were sent to one of 20 military camps set up throughout Ituri where they received standard military training from UPC/FPLC commanders. 79 It is alleged they were beaten, whipped, imprisoned and inadequately fed, and young girls were raped. They were encouraged to drink alcohol and to take drugs, leading to frequent intoxication.80 33. It is contended Thomas Lubanga either knew that children under 15 years of age were being conscripted or enlisted or he was at least aware that this was an inevitable consequence of what was occurring. Despite this knowledge, the recruitment drive continued, as part of the execution of the joint plan. He frequently saw child soldiers, and even his own personal protection unit included children aged between 13 and 17. The accused apparently received a copy of a document from one of the national secretaries to Eric Mbabazi which referred to the presence of child soldiers who were aged between 10 and 16 years.81 34. The prosecution alleges that the use of young people, including children under the age of 15, continued throughout the period of the charges. This escalated when the fighting was intense and it drew the attention of the Organisation of the United Nations (“UN”) and various humanitarian organisations to this phenomenon. It is argued that in order to dispel the concerns of the international community about the use of child soldiers, the accused issued false demobilisation orders, while, in reality, the position remained unchanged. Thomas Lubanga visited a training camp two weeks after issuing an order of this kind where children significantly under the age of 15 were visible, including amongst the bodyguards of the senior commanders.82 35. The prosecution submits that the crimes were committed in the context of a conflict of a non-international character, and the involvement and influence of various States did not internationalise the armed conflict to which Mr Lubanga’s UPC/FPLC was a party at the relevant time.83 36. Not all the facts included in this summary fall within the parameters of the facts and circumstances described in the charges as confirmed in the Decision on the Confirmation of Charges. For instance, as noted by the Chamber in various previous decisions, the use of girl soldiers as sexual slaves together with the resulting unwanted pregnancies have not been included. As already indicated, the Chamber has ensured that this Judgment does not exceed the facts and circumstances described in the charges. B. DEFENCE SUBMISSIONS 37. The defence presented a bifurcated case. The first part, which was introduced between 27 January 2010 and 1 December 2010, challenged the testimony of all the prosecution’s child soldier witnesses. The prosecution, in turn, called various rebuttal witnesses.84 In light of the evidence given at this stage, the defence argued that the proceedings should be stayed because they had been “irremediably vitiated by serious breaches of the fundamental principles of justice [and] the norms of a fair trial” .85 38. The three main contentions of the defence in this regard were (i) that four of the prosecution’s intermediaries (Intermediary 143, P-0316, P-0321, and P-0031) were involved in soliciting false testimony from all the prosecution witnesses who were called to give evidence as former child soldiers;86 (ii) one of the participating victims (said to be an important Congolese politician) solicited false testimony, and the Congolese authorities fraudulently intervened in the investigations;87 and (iii) the prosecution failed to fulfil its obligations either to investigate all the relevant exculpatory circumstances or to effect timely and appropriate disclosure.88 39. In its closing submissions, the defence requests the Chamber to consider, mutatis mutandis, the facts and arguments rehearsed in this application for a permanent stay of the proceedings, which have demonstrated “numerous serious failures” on the part of the prosecution.89 In particular, the defence sets out what it argues to be the lack of any proper investigation by the prosecution into the reliability of the evidence it called (including the failure to verify the identity of its witnesses or the credibility of their allegations), along with the use of documents which lacked any guarantee of reliability.90 It is suggested that in light of this alleged misconduct, it is impossible for the Chamber to attach sufficient weight, i.e. “beyond a reasonable doubt”, to any of the evidence introduced by the prosecution, thereby rendering a guilty verdict unsustainable.91 40. The second part of the defence evidence (presented between 30 March and 14 April 2011) focussed on the individual criminal responsibility of Mr Lubanga. Five defence witnesses, including four UPC insiders, testified on various aspects of the substantive allegations against the accused. 41. The defence argues in its final submissions that none of the evidence presented at trial proves beyond reasonable doubt that children under the age of 15 were enlisted and conscripted by the FPLC, or were used to participate actively in hostilities, during the period covered by the charges.92 It is further argued the Prosecutor failed to call any former child soldiers who were under the age of 15 at the relevant time, and this, taken alone, casts doubt over the merits of the prosecution’s submissions.93 It is also submitted that the allegation of the prosecution that the UPC had 20 camps is unfounded: D-0019 mentioned that the UPC only had 3 camps (Mandro, Rwampara and Bule), and the witnesses who refer to other camps are said to be unreliable.94 42. The defence submits that i) between September 2002 and May 2003 the conflict in Ituri was international in character,95 and ii) there was no conflict (either international or non-international) in Ituri between late May 2003 and 13 August 2003. On this basis, it is suggested the crimes charged under Article 8 of the Statute could not have been committed during that latter period.96 43. It is argued that the “common plan”, which forms the basis of charging the accused as a co-perpetrator, was not criminal and the allegation in this regard is, in any event, founded on inaccurate facts.97 The defence denies the accused formed a political and military alliance with APC dissidents between July 2000 and March 2002.98 It is said the UPC was not a military organisation in 2000,99 and Mr Lubanga did not personally contribute to the armed rebellion in Bunia between April and August 2002.100 The defence contends that the accused was in custody outside Ituri when the common plan was implemented,101 and there is no evidence that he was involved in its formulation.102 The defence submits his participation in government (as President of the UPC) cannot be equated with participation in a common plan for the purposes of criminal liability for these alleged offences. It is emphasised that the UPC executive, which included Mr Lubanga, was chased out of Bunia in March 2003, and as a result the accused was not in the DRC for the majority of the period between March and May 2003. During this time, the UPC executive was unable to meet, and it is suggested there is no evidence that its members were in a position to communicate. Therefore, it is argued there is no support for the existence of a “common plan” between March and May 2003.103 44. It is contended the accused did not play a central role in the military structure of the FPLC (which was headed by Floribert Kisembo)104 and that he did not personally contribute to the recruitment or training of recruits, or to their allocation or use.105 The defence suggests that although Mr Lubanga visited the Rwampara training camp in February 2003, the speech he gave on that occasion does not constitute an “essential contribution” to the process of recruitment. Further, it is said that he did not visit any other training camps or participate in any of the recruitment operations.106 On the contrary, it is submitted the enlistment, training and use of FPLC soldiers was within the sole jurisdiction of the military hierarchy under the leadership of dissident soldiers of the APC and Chief Kahwa. 107 Accordingly, the defence submits the accused did not make an “essential contribution” to the commission of the crimes with which he is charged.108 45. The defence argues that the testimony of several witnesses demonstrates there were no children under the age of 15 amongst the soldiers assigned to guard the accused.109 46. As to the mental element, the defence contends there is no evidence to suggest the accused either knew or should have known that there were children under the age of 15 in the FPLC, or that he was obliged by his position as President and Commander-in-chief of the UPC/RP to ensure all the recruits were over the age of 15.110 It is further submitted there is no evidence demonstrating that he was aware of any widespread practice of compulsory conscription of children under the age of 15 or their use by way of participation in the hostilities.111 47. The defence argues that “at no time did the accused approve, accept or tolerate the enlistment of children under the age of 15 years old” and that “each time he found himself in a position to exert his authority” Mr Lubanga implemented measures prohibiting the recruitment of child soldiers and ensuring their demobilisation. 112 Between September 2002 and March 2003, and between the end of May and 13 August 2003, the accused is said to have issued a formal ban on the enlistment of minors and to have been active in implementing demobilisation measures for anyone under the age of 18 years in the FPLC and the other armed groups.113 Accordingly, it is submitted the accused did not have the intention required by Article 30 for the crimes with which he is charged.114 48. Moreover, the defence contends that the accused’s position as the UPC President (and de jure Commander-in-Chief of the FPLC) does not lead to the conclusion that he was in a position to ensure that every recruit was older than 15 years of age, particularly since he is not charged with responsibility as a commander under Article 28 of the Statute but instead he is prosecuted under Article 25(3)(a). The defence argues it is impermissible for the accused to be convicted on any basis other than as someone with responsibility under Article 25(3)(a). As set out above, it is the defence submission that the evidence demonstrates that when Mr Lubanga received information that there were children under the age of 18 within the FPLC, he immediately took steps to ensure they were demobilised.115 It is submitted there is no evidence demonstrating that the accused ordered the recruitment of children under 15 or their use in hostilities. To the contrary, it is argued the only instructions he gave were to order their demobilisation.116 The defence suggests the prosecution is prohibited from relying on any alleged omissions by the accused as part of its theory of “control” (in the sense that he allegedly failed to prevent recruitment by his subordinates).117 Further, it is contended that the prosecution has not demonstrated how any contribution by the accused amounted to the sine qua non necessary for the commission of these alleged crimes.118 49. The defence highlights certain items of evidence in this regard. It is suggested it was simply a matter of conjecture on the part of P-0041 that the accused presided over any of the military meetings – indeed, it is said there was no basis for this supposition.119 It is argued that the UPC logbooks reveal that the Chief of Staff took all the relevant decisions and, as a result, their relationship fails to provide evidence of “effective control” on his (the accused’s) part.120 The defence submits P-0055 indicated that he had not witnessed meetings between Mr Lubanga and the Chief of Staff or other commanders. It is said P-0055 merely asserted that the G5 was able to meet with the Chief of Staff and the accused, without indicating whether this happened.121 The defence relies on the suggested acceptance by the prosecution that the troops of Commander Kakwavu only remained in the UPC between August 2002 and 6 March 2003. On this basis, it is argued Mr Lubanga is not responsible for any recruitment by this group.122 It is contended that the monthly report relied on by the prosecution does not indicate that forced recruitment occurred in the villages. On the contrary, it is suggested it proves that the recruitment was voluntary and, additionally, there is no evidence it was seen by the accused.123 50. The defence submits that the demobilisation orders were meant to be executed, having been transmitted down the chain of command. However, difficulties were encountered, and although the accused asked for reports and to be kept up-to-date, the military leadership found that implementation was difficult, particularly vis-à-vis the selfdefence forces.124 51. As regards the suggested order from the accused on his return to Ituri that all children under 18 should be demobilised, it is said the evidence demonstrates that during the fighting in May 2003 to regain Bunia from the Ugandans, there were fighters from a number of groups (FPLC members loyal to Floribert Kisembo, Parti pour l’Unite et la Sauvegarde de l’Integrite du Congo (“PUSIC”) dissidents loyal to Chief Kahwa, commanders Tchaligonza and Kasangaki, the self defence groups and armed civilians) who render it impossible to determine which fighters, including children, were part of the UPC. The defence argument, therefore, is that the accused – in good faith – ordered demobilisation, albeit in difficult circumstances.125 In the context of the assertion by the prosecution that from September 2002 the self-defence forces were part of the UPC/FPLC, the accused does not contest the suggestion that in September 2002 the forces of Chief Kahwa and dissidents from the APC joined together to form the FPLC. However, it is alleged there is no evidence that all the villages of Ituri with selfdefence forces joined the FPLC, thereby removing the opportunity of guaranteeing their own security. The defence relies on Mr Lubanga’s meeting with the leaders of the self-defence forces in February 2003, in order to discuss demobilisation, in support of its argument that the self-defence forces were still in existence at that time and were acting autonomously (it is noted that the summary of this meeting is not contested by the prosecution).126 C. VICTIMS SUBMISSIONS 52. The OPCV, in its capacity as legal representative of victims a/0047/06, a/0048/06, a/0050/06 and a/0052/06 addressed as part of its closing submissions the various issues of law that have arisen in the case, along with the matters that directly concern the four participating victims it represents. Summaries of these discrete arguments are set out at the appropriate stage of this judgment. Counsel has particularly rehearsed in detail the evidence that is said to corroborate the evidence of these dual-status witnesses.127 53. On the substantive factual matters arising in the case, the OPCV takes issue with the defence contentions as regards the documents that it is claimed call into question elements of the identifying information for these four victims. It is argued that the practices at the civil registry and in other organisations within the DRC have had an adverse impact on the position of the participating victims. It is suggested there is general recognition that documents relating to identity from the period relevant to the charges are at risk of containing serious flaws, and the defence arguments on this issue are described as being, certainly in part, speculative.128 Otherwise, it is contended the oral testimony of these four participating victims should be accorded more weight than the out-of-court statements that they or other witnesses have made. The OPCV maintains that credible explanations exist for the various contradictions and inconsistencies in their accounts,129 and the criticisms of their evidence do not reduce the weight and probative value of their testimony, which is purportedly corroborated.130 54. It is suggested the evidence given by the participating victims has demonstrated that children under 15 years were trained in military camps between early September 2002 and 1 – 3 August 2003,131 and that they were used to participate actively in hostilities involving the armed forces of the UPC/FPLC.132 It also alleged that children were taken to training camps in Centrale, Mandro, Rwampara, Irumu, Bule, Bogoro and Sota.133 55. As to the accused’s alleged criminality, it is argued he was de jure and de facto President of the UPC (with the FPLC as its armed wing). As Commander-in-Chief of the armed forces it is said he was informed of all the military operations that were implemented by the general staff, and he had responsibility for “logistical organisation” and securing supplies. The OPCV argues that he “maintained direct and regular contact with the ranking military leaders of the UPC/FPLC”, either by way of meetings at his residence or via Motorola radios.134 56. It is alleged that children under the age of 15 were amongst his bodyguard and, to his knowledge, within the bodyguards of other “ranking military leaders”. Similarly, the OPCV argues he would have been aware of their presence amongst the recruits at the various UPC/FPLC training camps, given his regular visits.135 He is said to have provided them with encouragement.136 57. Evidence is identified to the effect that the accused “issued public calls” to mobilise the Hema population, and he allegedly implemented or contributed to a policy of encouraging young recruits (including those under 15 years of age) to participate in the war effort.137 58. On the issue of the steps taken to demobilise child soldiers, the OPCV submits these only began in February 2003, and that prior to that time the self-defence committees in Ituri regularly sent recruits for training, many of whom joined the UPC/FPLC.138 59. It is alleged the accused is a “direct perpetrator” of the alleged crimes,139 most particularly because he invited the Hema population to send children who were below the age of 15 for military training140 and because he had recruits of that age in his own bodyguard. Additionally, it is argued that he is guilty as a “co-perpetrator”141 on the basis of his capacity as President of the UPC and Commander-in- Chief.142 60. Finally, it is suggested that various acts of inhuman or cruel treatment, along with allegations of sexual slavery, should be borne in mind when “considering” his criminal responsibility.143 61. The legal representatives of the V01 group of victims similarly advanced submissions on various legal and factual matters that have been addressed at the appropriate stages of this judgment. They join the OPCV in its submissions as to the accused’s alleged criminal responsibility, particularly regarding his role as President and Commander-in-Chief of the UPC when a campaign to recruit minors under the age of 15 years was launched and pursued. 144 Broadly similar arguments are advanced as regards demobilisation, in which it is emphasised that these initiatives were allegedly not implemented.145 62. It is suggested that the presence of children in the ranks of the UPC was part of a “phenomenon of child soldiers [that] was seen in the Democratic Republic of the Congo as from the time of the war triggered by the AFDL in 1996-1997”,146 and “the use of child soldiers in armed groups was the rule, not the exception”.147 63. It is contended the use of child soldiers was a deliberate policy of which the accused was aware,148 and that as a result young recruits were sent to military training camps; children below 15 years of age fought in battles; and some of the victims endured severe mistreatment, which took different forms.149 It is argued the conditions at the camps were closer to a concentration camp than to barracks.150 64. Broadly similar arguments have been deployed on behalf of the V02 group of victims. The accused’s position and his alleged authority is particularly emphasised,151 as is the recruitment policy that is said to have resulted in “a large number of children under the age of fifteen years [being compelled] to join the FPLC, which forcibly recruited groups of children in several locations in Ituri […] in August 2002.”152 The personal involvement of FPLC commanders and (on one occasion) the accused is stressed, 153 along with the instances of “voluntary” enlistment.154 As with other representatives, the ineffective nature of the demobilisation programme is emphasised.155 65. Generally, it is suggested “there are substantial grounds to believe that the FPLC used children under the age of 15 years to participate actively in the hostilities.”156 The core of these submissions are set out as follows: […] Thomas Lubanga Dyilo was present at the time and place of the forcible enlistment of children under the age of fifteen years into the FPLC, and, as President and Commander-in-Chief of the FPLC and the coordinator of the implementation of the common plan with other members of the hierarchy with a view to bolstering the UPC/RP and FPLC war effort, he even gave a speech before the young FPLC recruits, including those under the age of fifteen years, urging them to complete their military training and to prepare to participate in military operations.157 66. In this context it is suggested that the accused’s criminal liability as a co-perpetrator under Article 25(3)(a) of the Statute has been established.158 IV. FACTUAL OVERVIEW A. THE BACKGROUND TO THE CONFLICT IN ITURI 67. This case is concerned with events that took place between early September 2002 and 13 August 2003 in Ituri in the DRC. Ituri is a district of Orientale Province in the north east of the DRC, bordering Uganda, with population estimates ranging from 3.5 to 5.5 million people. 159 Beginning in 1999, ethnic tensions and competition for resources in the district escalated into a devastating conflict.160 Events that occurred during the latter part of this turmoil are the subject of this case. The following short summary draws, in the main, on undisputed evidence in this case that includes the testimony of the Chamber’s expert witness Roberto Garretón (CHM-0002) and the prosecution’s expert Gérard Prunier (P-0360), in addition to a number of other prosecution and defence witnesses. The Chamber has indicated the extent to which the evidence or the issues in this context are in dispute. 68. It is to be observed at the outset that the defence challenges the general reliability of the evidence of Gérard Prunier (P-0360), criticising his lack of adequate sources and alleging that some of the information in his report is biased against Thomas Lubanga, the UPC or indeed the Hema community as a whole.161 However, the defence also relies on his evidence as regards the involvement of the governments of the DRC, Uganda, and Rwanda in the conflict in Ituri during the period of the charges, 162 the security situation in Ituri at the time,163 the UN Mission in the DRC (“MONUC”)164 and the UPC’s political strategy.165 69. Overall, bearing in mind the totality of the evidence in this area and the witness’s response to questioning, the Chamber found Gérard Prunier (P-0360) to be a credible and reliable witness and has relied on his testimony and his report to establish the factual background set out in this section, as well as to assist with the analysis of the nature of the armed conflict in part IX. 70. The two expert witnesses addressed the DRC’s colonial past in considerable detail. Regardless of whether the origins of the conflict the Chamber is concerned with are to be found in that history, it is essentially too remote to be of direct relevance to the present charges. Instead, a convenient starting point is May 1997, when following a war that lasted nine months, Laurent Kabila came to power in Zaire which was re-named the “Democratic Republic of Congo”.166 President Kabila was assassinated in 2001, and he was succeeded by his son, Joseph Kabila. 167 By this time, there were at least ten conflicts within the country involving nine national armies and nineteen irregular armed forces.168 Six of these conflicts took place either in Orientale Province (in which Ituri is located) or in Ituri itself.169 B. THE HEMA-LENDU CONFLICT 71. Ituri is fertile and rich in resources such as gold, diamonds, oil, timber and coltan,170 which many groups, inside and outside the DRC, sought to exploit.171 72. Experts have suggested that much of the violence in Ituri during the period from 1999 to 2003 was initially economically motivated, and that the conflict was due in significant part to the involvement of members of the Ugandan national army (the Ugandan People’s Defence Force or “UPDF”), who exploited social unrest for their own economic advantage. 172 In August 1998, members of the UPDF supporting the RCD rebels occupied Orientale Province as part of the effort to overthrow President Kabila, and by November 1998 the UPDF had established a base in Bunia.173 73. The DRC has close to 450 different ethnic groups within its borders.174 In Ituri alone there are approximately 18 different ethnic groups, including the Lendu, the Ngiti and the Hema (and its sub-clan, the Gegere or Hema North).175 74. Belgian colonial rule had emphasised the ethnic divisions between the Hema and the Lendu, whilst favouring the former.176 Even after Congo declared its independence from Belgium, the Hema remained the landowning and business elite.177 In 1999, 75 of the 77 large farms formerly owned by Belgian colonists before President Mobutu’s “Zairisation” programme belonged to members of the Hema community. 178 Powerful Hemas involved in business transported goods from Ituri across the border into Uganda without paying import taxes.179 75. In 1998/1999, some Hema concessionaires reportedly tried to evict Lendu inhabitants forcibly from their land, which led to armed confrontation.180 The violence gradually spread throughout the district of Ituri, and the conflict widened into a confrontation between the Hema and Lendu communities.181 In addition, soldiers from the UPDF initially supported certain Hema landowners and were allegedly responsible for attacks on Lendu villages.182 The Lendu began to create self-defence forces and these militias attacked Hema villages with the support of individual Ugandan officers, the Congolese pre-transition government and certain rebel movements.183 The Hema also created self-defence committees for their own protection.184 The nature of the self-defence forces and their relationship with the UPC/FPLC (particularly whether they continued to operate independently of the UPC/FPLC after September 2002) are addressed below.185 76. From 1999 to the middle of 2003, a series of opposing rebel faction leaders struggled for political power in Ituri. 186 According to a MONUC report, “[t]he competition for the control of natural resources by combatant forces, exacerbated by an almost constant political vacuum in the region, [was] a major factor in prolonging the crisis in Ituri.”187 The same report suggested that the local ethnic problems “would not have turned into massive slaughter without the involvement of national and foreign players” including the Ugandan and Rwandan armies.188 77. In 1999, the rebel group with nominal control in Ituri at the time, the RCD, split into two factions, the RCD-Kisangani headed by Ernest Wamba dia Wamba and supported by Uganda, and the RCD-Goma (“RCD-G”), supported by Rwanda.189 78. Soon afterwards in October 1999, the UPDF decided to create a new province called “Kibali-Ituri” 190 and General James Kazini, the commander in charge of the Ugandan army in the DRC, appointed a Hema activist named Adèle Lotsove Mugisa as the provisional governor of the new province.191 79. After this decision, violence escalated in Ituri. By November 1999, 7,000 people had been killed and 100,000 displaced by the fighting.192 Over the next year and a half, a series of political upheavals and rapidly shifting military alliances helped to fuel the continued conflict.193 80. In March 2000, a UN inter-agency assessment mission in Ituri reported that the humanitarian situation was “close to catastrophic”.194 C. THE UPC 81. Against this background, the UPC was created on 15 September 2000.195 Although Thomas Lubanga was one of the UPC’s founding members and its President from the outset,196 the nature of the group when it was created is a matter of dispute in this case. 82. In the summer and fall of 2000, there was a mutiny of Hema officers and soldiers in the APC (the military wing of the RCD-ML) against Ernest Wamba dia Wamba.197 Members of this mutiny included Bosco Ntaganda, commanders Tchaligonza, Kasangaki and Bagonza, Floribert Kisembo and Chief Kahwa Panga Mandro. 198 Following negotiations with the Ugandan authorities, in the summer of 2000 the mutineers left for training in Uganda.199 83. The precise nature of the UPC at that time and the identity of those responsible for the training in Uganda are disputed issues in the case. These topics are analysed in greater detail below in the chapter dealing with the individual criminal responsibility of the accused.200 84. On 6 November 2000, Ernest Wamba dia Wamba was overthrown by Mr Mbusa Nyamwisi, who was supported by the Hema leader Jean Tibasima and the Hema militia. 201 In January 2001, the Ugandan Colonel Edison Muzoora of the UPDF seized control of the province of Ituri.202 85. By January 2001, a number of smaller splinter militias had emerged, which had ties with the Ugandan, Rwandan or Congolese forces and the rebel groups.203 As a result, by the end of 2001 there had been a sharp increase in ethnically-targeted attacks on villages and violence against civilians.204 86. In early 2002, Thomas Lubanga occupied the position of Minister of Defence in the RCD-ML (the group that controlled Ituri at the time).205 87. During the Sun City Peace negotiations in South Africa in April 2002, Mr Mbusa Nyamwisi, as President of the RCD-ML, shifted his allegiance to the Kinshasa government and he decided to create an integrated Hema-Lendu army for the RCD-ML.206 88. Thereafter, certain individuals (allegedly the accused was among them) decided to abandon the RCD-ML207 and a number of new militias were organised. As a consequence, the conflict in Ituri was driven to “new extremes of ethnic fragmentation”.208 On 17 April 2002 a political declaration was issued calling for the departure of Mr Mbusa Nyamwisi. 209 Following this declaration, Hema militia members including Chief Kahwa, 210 Floribert Kisembo, Bosco Ntaganda, commanders Tchaligonza, Kasangaki and Bagonza and others, mutinied against the RCD-ML.211 The alleged participation of the accused in these events and his relationship with the aforesaid individuals is analysed in the chapter dealing with individual criminal responsibility.212 89. In June 2002,213 when the accused was in Kampala in order to attend a meeting with a group that included John Tinanzabo, Richard Lonema, Jean-Pascal Ndukute, and Nestor Bamaraki,214 the Ugandan authorities arrested Thomas Lubanga and nine of his companions, later transferring them to Kinshasa where they were kept under house arrest. 215 The conditions of detention of Mr Lubanga and the delegation of tasks to, and communication on his part with, his alleged co-perpetrators and other UPC members are considered in detail in the chapter dealing with individual criminal responsibility.216 90. In early August 2002, RCD-ML dissidents (backed by Uganda), attacked Bunia and, after several days of fighting,217 took control of the town, ousting Mr Mbusa Nyamwisi and the RCD-ML.218 The APC forces were driven out and Governor Lompondo fled the city on foot.219 It is, however, a matter of contention in this case whether the UPC was responsible for forcing the RCD-ML out of Bunia. This, as with other contested issues, is discussed below.220 91. Within this context, the prosecution submits that the accused, jointly with his co-perpetrators, committed the crimes of conscription, enlistment and use of children under the age of 15, from 1 September 2002 to 13 August 2003. V.THE EVALUATION OF EVIDENCE Burden of Proof 92. Under Article 66 of the Statute, the accused is presumed to be innocent until the Prosecutor has proved his guilt.221 For a conviction, each element of the particular offence charged must be established “beyond reasonable doubt”.222 Evidence 93. Evidence was introduced during the trial in oral, written and audiovisual form. This included the viva voce testimony of sixty-seven witnesses (including expert witnesses) who appeared before the Chamber in person and via a video link. Two witnesses gave their evidence by way of sworn depositions (Article 69(2) of the Statute and Rule 68 of the Rules). Written statements were admitted pursuant to Rule 68 of the Rules. 223 Documents and other material such as transcripts of interviews, videos, the records from a variety of organisations, letters, photographs and maps were either introduced during the oral evidence of witnesses or by counsel (in the latter case, following a written application). 94. This Judgment is based on the entire proceedings and the Chamber’s evaluation of the evidence under Article 74(2) of the Statute. The Chamber has assessed the reliability of individual pieces of evidence and their probative value in the context of any other admissible and probative material. 95. The parties and participants were responsible for identifying the evidence that is relevant to the Article 74 Decision in their final submissions. During the course of giving directions as to the timetable for the closing stages of the case on 1 April 2011, the Chamber stated: So far as the bar table documents are concerned, it is likely that we will only consider them to the extent that they are referred to in your written closing submissions. So if there are bar table documents which at the end of the case you consider to have relevance and importance, you must identify the part of the document that you rely on, and you must set out a short explanation of the point or points that you make in relation to that document and the section of it that you have identified. If you fail to refer to a bar table document or you fail to refer to parts of a bar table document, you should work on the basis that there is a very real risk that we will simply not take it into consideration. We do not intend to read each and every one of the documents that you have respectively submitted, guessing at what might be the unexplained relevance of the particular piece of paper. These proceedings should not be conducted on the basis of judicial guesswork. Similarly, we have heard a great deal of oral evidence. Some of it, on analysis, may well prove to have greater relevance than other parts of the evidence that we have heard, and there is a duty on you all to indicate the principal facts, the principal parts of the oral evidence that we have heard that you rely on, coupled with a sufficient explanation as to why you say the particular piece of evidence or section of evidence has relevance to your case, either in support of the case that you are making or by way of criticism of the case for the other side. Now, it may be that the Bench will consider some of the evidence that you have not identified. That, of course, is a matter entirely for us if we choose to do so. But for those parts that you consider to be relevant, you must flag it up, and I hope that’s clear.224 96. In the Order on the timetable for closing submissions, dated 12 April 2011, the Chamber set out as follows: 5. For the documents that have been admitted into evidence without having been introduced during the examination of a witness (viz. the bar table documents), as set out by the Chamber during the hearing on 1 April 2011 in their final submissions the parties and participants are to identify the documents, or parts thereof, that are relied on, and to provide a sufficient explanation of relevance. 6. Similarly, the parts of the oral evidence relied on by the parties and participants and the documents relied on during the examination of witnesses must be clearly identified. There is a duty on the parties and participants to indicate the principal facts arising out of the oral evidence that are relied on, and to provide a sufficient explanation of relevance.225 97. These directions were not the subject of objection or suggested variation. The Chamber has focussed particularly on the matters raised by the parties and participants in their closing submissions, and it reviewed other items of evidence as appropriate. 98. Article 74(2) of the Statute directs the Chamber to “base its decision only on evidence submitted and discussed before it at the trial”. In the Chamber’s view, the phrase “discussed before it at the trial” encompasses not only the oral testimony, together with any documents and other items, such as video recordings, that were “discussed” during the hearings, but also any items of evidence that were “discussed” in the written submissions of the parties and the participants at any stage during the trial (e.g. documents introduced by counsel pursuant to a written application). The key is that the evidence upon which the Chamber bases its Article 74 Decision must have been introduced during the trial and have become part of the trial record, through the assignment of an evidence (EVD) number. 99. Article 74(2) of the Statute must also be read in conjunction with Article 69(4), which provides that: The Court may rule on the relevance or admissibility of any evidence, taking into account, inter alia, the probative value of the evidence and any prejudice that such evidence may cause to a fair trial or to a fair evaluation of the testimony of a witness, in accordance with the Rules of Procedure and Evidence. 100. The Appeals Chamber has held that Article 69(4) of the Statute is a mandatory provision that requires the Trial Chamber to rule on the admissibility of each item of submitted evidence “at some point in the proceedings”.226 The determination of admissibility is to be made in light of “the relevance, probative value and the potential prejudice of each item of evidence”.227 101. The combined effect of Articles 69(4) and 74(2) of the Statute is that the Chamber’s Article 74 Decision is to be based only on evidence that (i) has been “submitted”; (ii) has been “discussed […] at trial”, in the sense that it is part of the trial record; and (iii) has been found to be admissible by the Chamber.228 In reaching its verdict, the Chamber has considered only the materials that satisfy these three criteria. Oral Evidence 102. When evaluating the oral testimony of a witness, the Chamber has considered the entirety of the witness’s account; the manner in which he or she gave evidence; the plausibility of the testimony; and the extent to which it was consistent, including as regards other evidence in the case. The Chamber has assessed whether the witness’s evidence conflicted with prior statements he or she had made, insofar as the relevant portion of the prior statement is in evidence. In each instance the Chamber has evaluated the extent and seriousness of the inconsistency and its impact on the overall reliability of the witness. 103. The Chamber has made appropriate allowance for any instances of imprecision, implausibility or inconsistency, bearing in mind the overall context of the case and the circumstances of the individual witnesses. For example, the charges relate to events that occurred in 2002 and 2003. Memories fade, and witnesses who were children at the time of the events, or who suffered trauma, may have had particular difficulty in providing a coherent, complete and logical account. There are other potential reasons why a witness’s evidence may have been flawed and the Chamber, when assessing his or her testimony, has taken these considerations into account and they are reflected in its overall assessment of the account in question. 104. In certain instances, the Chamber has not relied on part of a witness’s account whilst accepting other aspects of his or her evidence, thereby acknowledging that it is possible for a witness to be accurate on some issues and unreliable on others. Nonetheless, when the Chamber rejected part of a witness’s testimony, it has invariably considered the impact of that decision as regards the reliability of the remainder of the individual’s evidence. 105. The Chamber called a psychologist who gave expert testimony on the psychological impact of a child having been a soldier and the effect of trauma on memory.229 This provided useful background evidence when the Chamber assessed the accounts of the individuals in this category. 106. The Chamber has considered the individual circumstances of each witness, including his or her rel

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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

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Common Law legal systems have developed principles about modes of liability. However, at their inception, neither of these systems was intended to deal with the crimes under the jurisdiction of this Court, i.e. the most serious crimes of concern to the international community as a whole. The Statute sets out the modes of liability in Articles 25 and 28 and, they should be interpreted in a way that allows properly expressing and addressing the responsibility for these crimes. 977. Articles 25(3)(a) to (d) establish the modes of individual criminal responsibility under the Statute, other than the “[r]esponsibility of commanders and other superiors”, which is addressed in Article 28. Under Article 25(3)(a), an individual can be convicted of committing a crime: (i) individually; (ii) jointly with another; or (iii) through another person. Under Articles 25(3)(b) to (d), an individual can be convicted of: (i) ordering, soliciting or inducing a crime; (ii) acting as an accessory to a crime; or (iii) contributing to a crime committed by a group acting with a common purpose. 978. The Pre-Trial Chamber decided, pursuant to Article 61(7) of the Statute, there was sufficient evidence to establish substantial grounds to believe that Mr Lubanga committed the crimes charged, under Article 25(3)(a), as a direct co-perpetrator. The Chamber will limit its analysis of Mr Lubanga’s responsibility to this mode of liability. 979. In considering the scope of liability under Article 25(3)(a) of the Rome Statute, the Chamber notes, as set out above,2685 that the Appeals Chamber has stated that the provisions of the Statute are to be interpreted in conformity with Article 31(1) of the Vienna Convention on the Law of Treaties. 2686 Hence, the relevant elements of Article 25(3)(a) of the Statute, that the individual “commits such a crime […] jointly with another […] person”, must be interpreted in good faith in accordance with the ordinary meaning to be given to the language of the Statute, bearing in mind the relevant context and in light of its object and purpose.2687 (1) The Common Plan or Agreement 980. Article 25(3)(a) stipulates that a crime can be committed not only by an individual acting by himself or through another person, but also by an individual who acts jointly with another. To establish liability as a co-perpetrator under Article 25(3)(a), it is necessary there are at least two individuals involved in the commission of the crime. This is evident from the use of terms “jointly with another” in Article 25(3)(a). 981. As the Pre-Trial Chamber concluded, co-perpetration requires the existence of an agreement or common plan between the coperpetrators. This provides for a sufficient connection between the individuals who together commit the crime and it allows responsibility to be established on a “joint” basis.2688 982. As set out above, the Pre-Trial Chamber decided that the plan “must include “an element of criminality”, although it does not need to be specifically directed at the commission of a crime.”2689 In the Confirmation Decision, it was held to be sufficient: (i) that the co-perpetrators have agreed: (a) to start the implementation of the common plan to achieve a non-criminal goal, and (b) to only commit the crime if certain conditions are met; or (ii) that the co-perpetrators (a) are aware of the risk that implementing the common plan (which is specifically directed at the achievement of a noncriminal goal) will result in the commission of the crime, and (b) accept such outcome. 2690 983. While the prosecution supports this interpretation,2691 the defence argues that in order to establish criminal liability on the basis of coperpetration, the common plan must be intrinsically criminal. It is argued that participation in a plan which “in itself is not criminal but merely capable of creating conditions conducive to the commission of criminal acts cannot be regarded as characterising the actus reus of criminal co-perpetration”. 2692 Therefore, it is suggested “mere knowledge ‘of the risk that implementing the common plan will result in the commission of the crime’ is insufficient to engage criminal responsibility by way of co-perpetration.”2693 984. In the view of the Majority of the Chamber, the prosecution is not required to prove that the plan was specifically directed at committing the crime in question (the conscription, enlistment or use of children), nor does the plan need to have been intrinsically criminal as suggested by the defence. However, it is necessary, as a minimum, for the prosecution to establish the common plan included a critical element of criminality, namely that, its implementation embodied a sufficient risk that, if events follow the ordinary course, a crime will be committed. 985. In order to establish the statutory scope of this first objective requirement, the Majority of the Chamber finds guidance in the manner that the plan is mirrored in the mental element. A combined reading of Articles 25(3)(a) and 30 leads to the conclusion that committing the crime in question does not need to be the overarching goal of the co-perpetrators. 986. The conscription, enlistment and use of children under the age of 15 and using them to participate actively in hostilities is said by the prosecution to have been the result of the implementation of the common plan.2694 Under Article 30(2)(b), intent is established if the person is aware that a consequence will occur in the ordinary course of events. Similarly, Article 30(3) provides that “knowledge” of a consequence means awareness that it (the consequence) “will occur in the ordinary course of events”. Hence, in the view of the Majority, the mental requirement that the common plan included the commission of a crime will be satisfied if the co-perpetrators knew that, in the ordinary course of events, implementing the plan will lead to that result. “Knowledge”, defined as awareness by the co-perpetrators that a consequence will occur (in the future), necessarily means that the co- perpetrators are aware of the risk that the consequence, prospectively, will occur. This interpretation is discussed in greater detail below in the section dealing with the mental element. 987. The Majority of the Chamber concludes that as to the objective part of this requirement, this means that the agreement on a common plan leads to co-perpetration if its implementation embodies a sufficient risk that, in the ordinary course of events, a crime will be committed. 988. Furthermore, co-perpetration does not require that the agreement or the common plan is explicit in order for the individual conduct of each co-perpetrator to be connected.2695 Finally, although direct evidence of the plan is likely to assist in demonstrating its existence, this is not a legal requirement. The agreement can be inferred from circumstantial evidence. (2) The Essential Contribution 989. The Pre-Trial Chamber concluded that the contribution of the alleged co-perpetrator must be “essential”. 2696 It stated its conclusion as follows: In the view of the Chamber, when the objective elements of an offence are carried out by a plurality of persons acting within the framework of a common plan, only those to whom essential tasks have been assigned – and who, consequently, have the power to frustrate the commission of the crime by not performing their tasks – can be said to have joint control over the crime.2697 990. The prosecution submits that co-perpetration requires that the accused has “functional control” over the crime: This means that, when conceiving the common plan, the Accused must have been assigned a role that was central to the implementation of the common plan, in the sense that the common plan would not have been carried out in the manner agreed upon without that role being performed. This concept has been labelled as “functional control”. 2698 991. However, the prosecution qualifies this suggested requirement by submitting that as long as the accused was assigned a central role in the implementation of the plan, it will suffice if in retrospect it appears his or her contribution was substantial, rather than essential. A “substantial” contribution is said to be established when “the crime might still have occurred absent the contribution of the Accused, but not without great difficulty”.2699 992. The defence contends that a “substantial” contribution is insufficient. It argues the contribution should be conditio sine qua non of the crime and this requirement must be assessed in light of the facts as they actually occurred, rather than assessed on the basis of the “role” assigned to the accused within the framework of a pre-agreed plan.2700 993. An analysis of the accused’s contribution gives rise to two interrelated questions. The first question is whether it is necessary for the prosecution to establish a connection between the accused’s contribution, taken in isolation, and the crimes that were committed. The second question relates to the nature of the contribution that gives rise to joint responsibility: should it be described as either “more than de minimis”, “substantial” or “essential”? 994. In the view of the Majority of the Chamber, the wording of Article 25(3)(a), namely that the individual “commits such a crime […] jointly with another”, requires that the offence be the result of the combined and coordinated contributions of those involved, or at least two of them. None of the participants exercises, individually, control over the crime as a whole but, instead, the control over the crime falls in the hands of a collective as such.2701 Therefore, the prosecution does not need to demonstrate that the contribution of the accused, taken alone, caused the crime; 2702 rather, the responsibility of the co-perpetrators for the crimes resulting from the execution of the common plan arises from mutual attribution, based on the joint agreement or common plan. 995. Article 25(3)(a) must be read in the context of the section establishing the modes of liability, in accordance with the Appeals Chamber’s jurisprudence set out above.2703 996. Both Articles 25(3)(a) and (d) address the situation in which a number of people are involved in a crime. In the judgment of the Majority, the critical distinction between these provisions is that under Article 25(3)(a) the co-perpetrator “commits” the crime, whilst under Article 25(3)(d) the individual “contributes in any other way to the commission” of a crime by a group of individuals acting with a common purpose. The Majority’s view is that a systematic reading of these provisions leads to the conclusion that the contribution of the coperpetrator who “commits” a crime is necessarily of greater significance than that of an individual who “contributes in any other way to the commission” of a crime. 997. Article 25(3)(c) establishes the liability of accessories – those who aid, abet or otherwise assist in the commission or attempted commission of the crime. In the view of the Majority, principal liability “objectively” requires a greater contribution than accessory liability. If accessories must have had “a substantial effect on the commission of the crime”2704 to be held liable, then co-perpetrators must have had, pursuant to a systematic reading of this provision, more than a substantial effect. 998. The conclusion that principal liability must require more than accessory liability is supported, in the view of the Majority, by the statutory provision on attempt liability (Article 25(3)(f) of the Statute). Only those individuals who attempt “to commit” a crime, as opposed to those who participate in a crime committed by someone else, can be held liable under that provision. The same conclusion is supported by the plain language of Articles 25(3)(b) and (c), which require for secondary liability that the perpetrator at least attempt to commit the crime. As such, secondary liability is dependent on whether the perpetrator acts. Conversely, principal liability, which is closer to the violation of the legal interests protected by the norm, is not the subject of such dependence. Hence, the Majority concludes that this confirms the predominance of principal over secondary liability, which, in turn, supports a notion of principal liability that requires a greater contribution than accessory liability. 999. The Majority is of the view that the contribution of the coperpetrator must be essential, as has been consistently and invariably established in this Court’s jurisprudence.2705 The Statute differentiates between the responsibility and liability of those persons who commit a crime (at Article 25(3)(a)) and those who are accessories to it (at Articles 25(3)(b) to (d)). It would be possible to expand the concept of principal liability (or “commission” or “perpetration”), to make it more widely applicable, by lowering the threshold that the accused’s contribution be essential. However, lowering that threshold would deprive the notion of principal liability of its capacity to express the blameworthiness of those persons who are the most responsible for the most serious crimes of international concern. Instead, a notion of coperpetration that requires an essential contribution allows for the different degrees of responsibility to be properly expressed and addressed. 1000. The determination as to whether the particular contribution of the accused results in liability as a co-perpetrator is to be based on an analysis of the common plan and the role that was assigned to, or was assumed by the co-perpetrator, according to the division of tasks.2706 In the view of the Majority what is decisive is whether the co-perpetrator performs an essential role in accordance with the common plan, and it is in this sense that his contribution, as it relates to the exercise of the role and functions assigned to him, must be essential. 1001. Furthermore, the co-perpetrator’s role is to be assessed on a case-by-case basis. This assessment involves a flexible approach, undertaken in the context of a broad inquiry into the overall circumstances of a case. 1002. The defence submits that co-perpetration requires “personal and direct participation in the crime itself”,2707 and that the responsibility of those who do not participate directly in the execution of a crime is reflected in Article 25(3)(b) rather than Article 25(3)(a).2708 It contends that Article 25(3)(a) requires direct participation in the crime.2709 1003. However, the Chamber agrees with the conclusions, firstly, of the Pre-Trial Chamber that criminal liability in this context is “not limited to those who physically carry out the objective elements of the offence, but also include(s) those 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”. 2710 Secondly, the Chamber agrees with the prosecution that “[i]t is not necessary that the accused physically perpetrated any of the elements of the crimes or that he was present at the crime scene”.2711 1004. Those who commit a crime jointly include, inter alia, those who assist in formulating the relevant strategy or plan, become involved in directing or controlling other participants or determine the roles of those involved in the offence. This conclusion makes it unnecessary for the prosecution to establish a direct or physical link between the accused’s contribution and the commission of the crimes. 1005. Hence, the Chamber is of the view that the accused does not need to be present at the scene of the crime, so long as he exercised, jointly with others, control over the crime. 1006. The Majority therefore concludes that the commission of a crime jointly with another person involves two objective requirements: (i) the existence of an agreement or common plan between two or more persons that, if implemented, will result in the commission of a crime; and (ii) that the accused provided an essential contribution to the common plan that resulted in the commission of the relevant crime. These two requirements must be assessed on the basis of all the evidence related to the alleged crime. b) The Mental Element 1007. Article 30 defines the requirement of “intent” by reference to three particular factors: conduct, consequence and circumstance. First, pursuant to Article 30(2)(a), a person has intent if he or she “means to engage in the conduct”. Second, under Article 30(2)(b) and in relation to a consequence, it is necessary that the individual “means to cause that consequence or is aware that it will occur in the ordinary course of events”. Third, by Article 30(3) “knowledge” “means awareness that a circumstance exists or a consequence will occur in the ordinary course of events”. 1008. As noted earlier, the Pre-Trial Chamber decided that the subjective elements that the suspect must fulfil2712 are the following: (i) “[t]he suspect and the other co-perpetrators […] 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 […] must all mutually accept such a result by reconciling themselves with it or consenting to it”;2713 and (ii) “the awareness by the suspect of the factual circumstances enabling him or her to jointly control the crime”.2714 1009. The Pre-Trial Chamber decided that the “cumulative” reference to “intent” and “knowledge” in Article 30 means there must be a “volitional element” on the part of the accused. This encompasses not only situations in which the suspect: i) knows that his or her actions or omissions will bring about the objective elements of the crime, and ii) undertakes such actions or omissions with the concrete intent to bring about the objective elements of the crime (also known as dolus directus of the first degree) 2715 but also the “other forms of the concept of dolus”. 2716 The Pre-Trial Chamber was of the view that these include: i) situations in which the suspect, without having the concrete intent to bring about the objective elements of the crime, is aware that such elements will be the necessary outcome of his or her actions or omissions (also known as dolus directus of the second degree);2717 and ii) situations in which the suspect (a) is aware of the risk that the objective elements of the crime may result from his or her actions or omissions, and (b) accepts such an outcome by reconciling himself or herself with it or consenting to it (also known as dolus eventualis).2718 1010. The Pre-Trial Chamber considered that within dolus eventualis “two kinds of scenarios are distinguishable”. First, if the coperpetrator was aware of a substantial risk that his conduct will bring about “the objective elements of the crime”, his intent can be inferred from the fact that he acted in the manner agreed in spite of this level of awareness.2719 Second, if there was a low risk of bringing about “the objective elements of the crime”, “the suspect must have clearly or expressly accepted the idea that such objective elements may result from his or her actions or omissions”.2720 1011. The conscription or enlistment of children under the age of 15 or using them to participate actively in hostilities is said by the prosecution to have been the result of the implementation of a common plan.2721 The drafting history of the Statute suggests that the notion of dolus eventualis, along with the concept of recklessness, was deliberately excluded from the framework of the Statute (e.g. see the use of the words “unless otherwise provided” in the first sentence of Article 30).2722 The plain language of the Statute, and most particularly the use of the words “will occur” in Article 30(2)(b) as opposed to “may occur”, excludes the concept of dolus eventualis.2723 The Chamber accepts the approach of Pre-Trial Chamber II on this issue.2724 1012. In the view of the Majority of the Chamber, the “awareness that a consequence will occur in the ordinary course of events” means that the participants anticipate, based on their knowledge of how events ordinarily develop, that the consequence will occur in the future. This prognosis involves consideration of the concepts of “possibility” and “probability”, which are inherent to the notions of “risk” and “danger”. Risk is defined as “danger, (exposure to) the possibility of loss, injury or other adverse circumstance”. 2725 The co-perpetrators only “know” the consequences of their conduct once they have occurred. At the time the co-perpetrators agree on a common plan and throughout its implementation, they must know the existence of a risk that the consequence will occur. As to the degree of risk, and pursuant to the wording of Article 30, it must be no less than awareness on the part of the co-perpetrator that the consequence “will occur in the ordinary course of events”. A low risk will not be sufficient. 1013. The Chamber is of the view that the prosecution must establish, as regards the mental element, that: (i) the accused and at least one other perpetrator meant to conscript, enlist or use children under the age of 15 to participate actively in hostilities or they were aware that in implementing their common plan this consequence “will occur in the ordinary course of events”; and (ii) the accused was aware that he provided an essential contribution to the implementation of the common plan. 1014. As already highlighted, the general mental element contained in Article 30(1) (“intent” and “knowledge”) applies to all crimes under the jurisdiction of the Court “[u]nless otherwise provided”. Article 8(2)(e)(vii), which gives the Court jurisdiction over the war crime of “conscripting and enlisting children under the age of 15 years into armed forces or groups or using them to participate actively in hostilities” does not derogate from this principle. However, under Article 8(2)(e)(vii) of the Elements of Crimes the following requirement is set out: 3. The perpetrator knew or should have known that such a person or persons were under the age of 15 years. 1015. This lesser mental element raises a number of issues, including: (i) whether it is possible, under the framework of the Rome Statute, for the Elements of Crimes to alter any of the material elements of the crimes established in the Statute; and (ii) the scope and interpretation of this “should have known” requirement. However, as set out above, the prosecution does not invite a conviction of the accused on the basis “he should have known” that the individuals who were conscripted or enlisted, or who were used, were under the age of 15 years. It submits the Chamber should convict the accused only if it finds he knew there were children under 15 years. 2726 The Majority of the Chamber considers it is unnecessary to approach the case on any other basis, and it would be inappropriate to rule on these substantive issues in the abstract. 1016. Addressing the contextual elements, and in accordance with Element 5 of Article 8(2)(e)(vii) and the introduction to Article 8 of the Elements of Crimes, the accused must be “aware of [the] factual circumstances that established the existence of an armed conflict.” It is not necessary for the prosecution to prove he knew that there was an armed conflict.2727 The accused must also be aware of the link between these factual circumstances and his conduct. 1017. Judge Fulford has written a concurring opinion which is attached to this Judgment. 6. Conclusions of the Chamber 1018. For the reasons set out above, the prosecution must prove in relation to each charge that: (i) there was an agreement or common plan between the accused and at least one other co-perpetrator that, once implemented, will result in the commission of the relevant crime in the ordinary course of events; (ii) the accused provided an essential contribution to the common plan that resulted in the commission of the relevant crime; (iii) the accused meant to conscript, enlist or use children under the age of 15 to participate actively in hostilities or he was aware that by implementing the common plan these consequences “will occur in the ordinary course of events”; (iv) the accused was aware that he provided an essential contribution to the implementation of the common plan; and (v) the accused was aware of the factual circumstances that established the existence of an armed conflict and the link between these circumstances and his conduct. B. THE FACTS 1019. The prosecution submits Thomas Lubanga, Floribert Kisembo, Bosco Ntaganda, Chief Kahwa Panga Mandro, Rafiki Saba Aimable, and other senior FPLC commanders, including commanders Tchaligonza, Bagonza and Kasangaki – the alleged co-perpetrators in this case2728 – agreed upon a plan and acted together in order to build an army that included young people and to create a political movement. Furthermore, it is said they used political and military means to take control of Bunia and to exercise authority throughout Ituri. The accused is alleged to have coordinated and to have had the “final say” as to the group’s activities.2729 As a result, children under the age of 15 were allegedly conscripted and enlisted, and used to participate actively in hostilities.2730 1020. The defence contends that the prosecution modified its allegations as to this “common plan” to the extent that the crimes charged were first described as a consequence rather than an objective of the implementation of the plan, but in due course they were said to be an integral element.2731 The defence submits that as a result the nature of the case against the accused significantly changed, and it argues the responsibility of Thomas Lubanga should only be considered within the framework of the facts and the law established by the Pre-Trial Chamber.2732 1021. The Chamber has concluded that the enlistment of children under the age of 15 and using them to participate actively in hostilities was the result of the implementation of the common plan. 2733 As discussed above, it is not necessary for the plan to have been directed specifically at committing the crime in question, and the Chamber has considered the issue on this basis.2734 1022. The defence contends that the events prior to September 2002 fall outside the period covered by the charges, and therefore they are not covered by the present Judgment. 2735 The prosecution has advanced contrary submissions. 2736 In the view of the Chamber, evidence relating to the period before September 2002 may assist in establishing the background and context of the events that fall within the timeframe of the charges. In addition, evidence concerning an earlier period of time may be directly relevant and admissible as regards the crimes confirmed by the Pre-Trial Chamber, including the relationship between the accused and his alleged co-perpetrators, depending on the circumstances as analysed below. 1023. In determining whether Thomas Lubanga is criminally responsible for the crimes charged, the Chamber has considered, first, whether a common plan existed between the accused and his alleged co-perpetrators, and, second, whether the contribution of the accused amounted to an essential contribution. The Chamber has examined the context of the creation of the UPC; 2737 the objectives of that organisation; the events leading up to the takeover of Bunia; the creation and the structures of the FPLC (the armed wing of the UPC); and the roles of Thomas Lubanga and the alleged co-perpetrators, before and during the timeframe of the charges. Thereafter, the Chamber has examined whether the prosecution has proved the required mental element on the part of the accused. 1. COMMON PLAN a) The co-perpetrator’s alleged alliance (Summer 2000 – March 2002) 1024. To establish the existence of a common plan between the alleged co-perpetrators, the Chamber has examined whether they were in contact with one another and, if so, what the nature of the contact and their relationship was in the period preceding September 2002. 1025. The prosecution suggests that Thomas Lubanga and his coperpetrators had formed a political and military alliance by September 2000. 2738 It is submitted that in the summer of 2000 they began recruiting Hema youths who later formed the armed wing of the UPC.2739 1026. The defence disputes this submission, and in particular contests the prosecution’s assertion that the UPC was created by the same soldiers who participated in a 2000 rebellion against the RCD-ML, the then government in power.2740 The defence further submits it has not been proved that the accused maintained contact with the mutiny’s leaders between July 2000 and March 2002.2741 1027. P-0012 gave evidence that 15 September 2000 – the date when the UPC was created – was also when Thomas Lubanga became the spokesman for a group of young Hema mutineers who had rebelled against Professor Wamba dia Wamba (because the latter had failed to assist them in their conflict with the Lendus).2742 P-0012 testified that the rebels set up a mobile force that was trained at Kyankwanzi, Uganda, in June or July 2000.2743 Adults and children were selected for this training, the latter having been sent by traditional chiefs and their parents, including, as seen by P-0012, “a lot of really small young children”.2744 P-0012 explained that the future commanders were given separate training in Jinja.2745 The mutineers who broke away from the RCD-ML2746 and founded the UPC were military men. They included General Tchaligonza, Commander Kasangaki, Chief Kahwa Panga Mandro, Bosco Ntaganda and Floribert Kisembo,2747 some of whom later held positions in the UPC/FPLC.2748 1028. P-0012 indicated Thomas Lubanga acted as the “spokesperson” for the youths who had been involved in the mutiny after they returned to Ituri from their training in Uganda.2749 However, he also suggested Mr Lubanga was not actively involved with these children because, at that stage, they were under the guidance of Jean Tibasima, 2750 who had charge of them. 2751 Additionally, P-0012 was unable to describe Thomas Lubanga’s duties as their spokesperson.2752 1029. The defence contends P-0012’s evidence was that Jean Tibasima rather than the accused was responsible for sending these youths to Uganda for training. 2753 The defence further challenges the prosecution’s assertion that Thomas Lubanga became the spokesman for the mutineers who broke away from the APC.2754 1030. The defence highlighted2755 the fact that P-0012 did not witness the events surrounding the mutiny of Hema soldiers in July 2000, and instead his account was based on discussions with some of the participants, in particular Chief Kahwa and General Tchaligonza.2756 The Chamber has scrutinised this indirect evidence with care. D-0019 testified that commanders Tchaligonza, Kasangaki, Bagonza, as well as Bosco Ntaganda and Floribert Kisembo were amongst the leaders of the mutiny against the RCD-ML.2757 He indicated the press reported that the Ugandan authorities had offered to provide training for the mutineers at Kyankwanzi and Jinja in Uganda.2758 As set out above, the Chamber has approached certain aspects of D-0019’s testimony with caution. However, on these issues, his evidence, which essentially corroborates the testimony of P-0012, was credible and reliable. 1031. P-0116 also gave evidence about the training in Kyankwanzi, and in particular Thomas Lubanga’s involvement in the operation. P- 0116, who was based in Bunia during the period shortly before the timeframe of the charges,2759 testified he was told that the accused had sent children to Uganda2760 during the summer of 2000,2761 and that Mr Lubanga was with them at the camp.2762 Chief Kahwa was allegedly also involved in this recruitment.2763 The Chamber has concluded that this evidence was sufficiently reliable given the circumstances in which it was obtained by P-0116.2764 Official and humanitarian sources had informed P-0116 in advance there was “a group, a militia, which was managed by Mr Thomas and that was developing and becoming stronger to set up an army”.2765 1032. Further, it was said Thomas Lubanga had visited the children at the camp and he personally underwent military training and was initiated into military life. 2766 Indeed, evidence was given that the accused said they were “his” children; he had sent them there; and he had the power to bring them back. 2767 P-0116 observed that approximately 165 children, between the ages of 13 and 18, were removed from the training camp, following a surprise visit by UNICEF and other humanitarian organisations. 2768 P-0116 gave evidence that the children concerned were predominantly Hema, and a number of them were under the age of 15.2769 1033. Some of those who witnessed this transfer of about 700 youths to Uganda told P-0116 they had been taken on Ugandan cargo planes, and it appeared that the accused was in contact with the Ugandan military authorities who gave him the necessary military support.2770 1034. P-0024 gave evidence that some of the children he interviewed in the course of the demobilisation process were under the age of 15.2771 P-0024 started working for SOS Grands Lacs between July and September 2001.2772 He stated that the mission of SOS Grands Lacs was to assist with the demobilisation and reintegration of child soldiers who had been brought to Uganda for training.2773 He suggested the children had been sent to Kyankwanzi because the rebel movement needed additional troops and they resorted to recruiting young children and preparing them for use by the military.2774 In his view the rebel group that sent the children for training was affiliated with the Hema community.2775 1035. The defence challenges the suggestion that Thomas Lubanga was involved in recruiting these children. It is argued P-0116’s allegedly “uncorroborated hearsay evidence” is unreliable and, given the children’s identities were not disclosed to the defence, it has not been possible to investigate this information.2776 1036. In the judgment of the Chamber, P-0116’s testimony was credible and reliable. His evidence, that tends to establish Thomas Lubanga’s involvement in these events, is based on credible sources and the information was verified by the witness. In addition, his account of Thomas Lubanga visiting the children at the camp and personally undergoing training is entirely credible. The Chamber notes that P-0116 had left Bunia by the fall of 2002. Thereafter, he remained professionally involved with the issue of child recruitment in the DRC.2777 He was undoubtedly well qualified to give evidence on these issues, and his account was credible and reliable. 1037. The defence relies on the evidence of D-0011, who testified that Thomas Lubanga, in conjunction with the NGO SOS Grands Lacs, organised the social reintegration of the children from Kyankwanzi.2778 1038. Notwithstanding a lack of detail, P-0024 suggested that the NGO SOS Grands Lacs cooperated with the RCD-ML and that Thomas Lubanga was probably involved with the demobilised children from Kyankwanzi given his role as the RCD-ML Minister of Defence.2779 1039. D-0019 gave evidence that Thomas Lubanga was part of a delegation sent to dissuade Uganda from attacking the mutineers.2780 He said Thomas Lubanga did not represent the mutineers, but instead he had been sent by prominent individuals in the area to ensure the stability of the town of Bunia, and to protect it in the event of an attack by the Ugandans.2781 1040. D-0019 also gave evidence that Floribert Kisembo, Bosco Ntaganda, and commanders Kasangaki and Bagonza were absent from Ituri following the summer of 2000 through to March 2002, at the latest.2782 P-0012 similarly testified that the majority of the alleged coperpetrators were not in Ituri for the greater part of the period between the summer of 2000 and February/March 2002.2783 1041. P-0041 testified that around July 2000, Thomas Lubanga convened a meeting at his home of those who were to become the signatories to the founding documents of the UPC, in order to discuss the creation of a political party.2784 Those documents,2785 including the statute 2786 and the organisation’s programme, 2787 are dated 15 September 2000 and they are all signed by Thomas Lubanga. The document constituting the UPC and the statute are also signed by numerous other members of the UPC, including Richard Lonema and Rafiki Saba. 2788 The Chamber notes that of the co-perpetrators identified by the prosecution, only Rafiki Saba signed both of these documents. 1042. The prosecution relies on a photograph of the accused together with Floribert Kisembo, Bosco Ntaganda, Rafiki Saba, Commander Kasangaki and others that appeared in the 1 August 2002 edition of a local newspaper, and it is suggested it demonstrates that the accused was associated with the others in the photograph and they had a military agenda.2789 The defence argues the photograph was taken in July 2000, therefore over two years before the events of August 2002, at a time when the accused had agreed to join talks with the Ugandan authorities in order to resolve the crisis created by the rebellion.2790 Accordingly, it is suggested the photograph is irrelevant to an alleged “common plan” in July and August 2002.2791 1043. The Chamber is persuaded that commanders Tchaligonza, Kasangaki, Bagonza, as well as Bosco Ntaganda and Floribert Kisembo were amongst the leaders of the mutiny against the RCD-ML. The evidence is inconclusive as to Thomas Lubanga’s alleged role as spokesperson for the mutineers. However, the evidence of D-0019, P- 0012 and P-0116 conclusively demonstrates that Floribert Kisembo, Bosco Ntaganda, Chief Kahwa and commanders Tchaligonza, Bagonza and Kasangaki were involved in organizing military training in Uganda for Hema youths, including young children during the summer of 2000. Although the Chamber considers the evidence is inconclusive as regards the details of how the children were transported to Uganda and whether Mr Lubanga was in touch with the Ugandan authorities during the relevant period, the evidence of P- 0012, P-0116 and P-0024 demonstrates he was involved with the group of soldiers, which included children, sent by the mutineers to Uganda for training. Indeed, very young children were included in this group. However, it is unnecessary for the Chamber to reach a precise determination of their individual ages because this incident falls outside the period of the charges and is relevant only for general contextual and background purposes. 1044. Although there is persuasive evidence that the accused was involved in the recruitment of these children, his precise role is unclear. The evidence fails to establish the exact nature of the relationship between the accused and the alleged co-perpetrators, and whether there was regular contact between any of them in 2000. However, given his overall involvement, and particularly his visit to the soldiers in the camp in Uganda, the Chamber infers he was in contact with the leaders of the mutiny and Chief Kahwa. The Chamber accepts P-0041’s evidence that Thomas Lubanga was also in touch with his alleged co-perpetrator Rafiki Saba in the summer of 2000, when the founding documents of the UPC were prepared. In addition, the Chamber notes that if the photograph referred to above was taken in ICC-01/04-01/06-2842 14-03-2012 449/624 SL T No. ICC-01/04-01/06 450/ 593 14 March 2012 July 2000, as suggested by the defence, it demonstrates contact between some of the alleged co-perpetrators at that time. 1045. Viewed overall, the evidence rehearsed above provides strong support for the suggestion that during the period prior to the confirmation of the charges – specifically in the summer of 2000 – the accused and some of his principal alleged co-perpetrators, including Floribert Kisembo, Bosco Ntaganda, Chief Kahwa and commanders Kisangaki, Tchaligonza, and Bagonza, were jointly involved in organising the training of Hema youths in the context of the mutiny. Mr Lubanga, inter alia, visited the children, liaised with individuals in Uganda to prevent attacks against the mutineers and was involved in the reintegration of the children following their training. b) Events leading up to and the take-over of Bunia 1046. In determining whether there was a common plan for the purposes of the charges, the Chamber found it of assistance to examine the events surrounding the takeover of Bunia and the events leading to the emergence of the UPC. (1) The emergence of the UPC and of Thomas Lubanga as its leader 1047. The origins of the UPC are disputed. The prosecution suggests that “in parallel with the recruitment and training for the militia” in Uganda, on 15 September 2000 Thomas Lubanga and Mr Rafiki, together with others, signed the founding documents of the UPC. The prosecution describes the UPC in September 2000 as “the political and military group into which [the soldiers trained in Uganda] would be incorporated and which would eventually take control of Ituri”.2792 1048. As discussed above, P-0041 gave evidence that Thomas Lubanga was behind the creation of this political party in the summer of 2000. The founding documents were signed in September of that year. 1049. Further, the prosecution contends that from its inception the UPC had the aim of using military force to achieve its goals, whereas the defence denies that the UPC had military objectives prior to September 2002.2793 1050. It is submitted by the defence that Mr Lubanga’s position in the government of the RCD-ML during this time is inconsistent with the prosecution’s theory that the UPC existed as a political/military organisation during the same period. 2794 The defence argument is that from April to August 2002, the accused acted for an organisation called the Front pour la reconciliation et la paix or “FRP”, which it is said engaged in initiatives of a purely political nature in order to bring about the end of the government of Mr Mbusa Nyamwisi with the help of the Ugandan authorities.2795 It is suggested Thomas Lubanga only began his opposition to the RCD-ML in April 2002 when he and others approached the Ugandan authorities in an attempt to have the organisation removed from Bunia.2796 1051. It is undisputed that Thomas Lubanga served as Minister of Defence for the RCD-ML, having been appointed by Mr Mbusa Nyamwisi.2797 In this position, which he held until April 2002,2798 the accused was responsible for the deployment of various commanders, including Bosco Ntaganda, whom he appointed as his assistant commander of operations.2799 During this time, he also served as the leader of the UPC.2800 1052. P-0041 testified that Bosco Ntaganda 2801 and Kisembo Bahemuka2802 were a part of the “guard” of Thomas Lubanga when he was RCD-ML defence minister. 2803 The defence disputes his description of their roles,2804 and relies on the testimony of D-0019 that Bosco Ntaganda and Floribert Kisembo were not Thomas Lubanga’s bodyguards or under his command.2805 1053. On this issue, the Chamber notes P-0041’s account concerning the role of Floribert Kisembo, whom he had not seen before, was based on having seen him with Thomas Lubanga2806 and he was unable to assist during questioning as regards the suggestion that Floribert Kisembo, as opposed to being a bodyguard, was one of the commanders in charge of operations in the APC.2807 The Chamber, therefore, does not accept P-0041’s suggestion that Floribert Kisembo and Bosco Ntaganda acted as guards for the accused. However, this weakness in his evidence as regards their precise roles before they were appointed to senior positions within the UPC/FPLC does not undermine P-0041’s evidence as a whole. 1054. P-0014 suggested that during this period, Thomas Lubanga, as the President of an “emerging” group called the UPC,2808 acted as the leader of a number of people.2809 The evidence of P-0014 was that at the outset the accused referred to the need to organise an army in order to fight against Mr Mbusa Nyamwisi’s military force.2810 P-0014 stated that at one meeting in early June 2002 a significant amount of time was devoted to discussing the tactics to be adopted – using both military and diplomatic means, including the press – in order to develop the awareness of the population in Ituri and to mobilise its people. 2811 According to the witness, Thomas Lubanga suggested “Iturians had to wake up, they had to rise, and team up with him to chase out Mbusa”.2812 The accused is said to have explained that all available resources and means – military and diplomatic – should be used to eject Mr Mbusa Nyamwisi and the RCD-ML, and he assigned tasks to various individuals and groups.2813 1055. P-0014 learned about the UPC at this meeting in June 2002 with Paul Avochi, John Tinanzabo, Dr. Kabagambe, Mama Akiki, Adèle Lotsove,2814 Kisembo Bitamara and others, and that the organisation was “leading the fight, the combat, and wanted to group together all Iturians to continue the combat”.2815 1056. P-0014 also gave evidence about Thomas Lubanga’s leadership role by reference to this meeting in Kampala, stating “[…] it was always Thomas Lubanga who took the decision, who took -- who had the final word on everything while he was there. If he said no, then it would be no; and if he gave his approval, then what he approved had to be carried out. […] I would like to tell you that Thomas Lubanga was indeed the leader who approved and disapproved of everything that happened.”2816 1057. According to P-0014, at one point during the meeting, the accused ordered Chief Kahwa and Mr Beiza to go to Rwanda to obtain weapons.2817 The witness noticed that Chief Kahwa and Mr Beiza were not in the hotel the following morning, 2818 and he received confirmation of these arrangements from those involved.2819 1058. The defence challenges P-0014’s credibility, suggesting that several of his statements about the Kampala meeting are inaccurate. For instance, his testimony is criticised on the basis that he did not know whether all the members of the delegation in Kampala in June 2002 were UPC members, and he was unable to say in which capacity two of the participants attended the meeting.2820 The defence notes P- 0014’s evidence that the first time he heard of the UPC was at the Kampala meeting, even though the UPC had been in existence prior to June 2002.2821 However, in light of the fact that P-0014 was not a UPC member, the Chamber does not consider his lack of knowledge on these issues undermines his credibility as to what he observed during the Kampala meeting. 1059. The defence also questions P-0014’s evidence that Thomas Lubanga ordered Mr Beiza and Chief Kahwa to obtain arms in Rwanda, asserting this was simply a deduction based on the fact they were absent for part of the Kampala meeting.2822 In the Chamber’s view, P-0014’s evidence about the trip is credible and reliable; he spoke with numerous people about this issue; and he gave consistent evidence when examined. (2) The arrest and detention of Thomas Lubanga, interim power and communications during detention (July – August 2002) 1060. It is undisputed that while he was attending the meeting referred to above in Kampala, Uganda, in the summer of 20022823 the accused, along with others in his delegation, was arrested and transferred to Kinshasa. There he was detained in the government facility for political prisoners, DEMIAP (“detection militaire anti patrie” [Detection of Unpatriotic Activities]), for approximately a month.2824 In due course, Mr Lubanga was placed under house arrest at the Kinshasa Grand Hôtel 2825 and he was eventually released and transferred to Bunia at the end of August 2002, at the instigation of the Kinshasa authorities.2826 1061. P-0014 testified that once Thomas Lubanga discovered his group was to be detained and sent to Kinshasa, he delegated authority to Richard Lonema (who was to act as President on an interim basis) and Mbuna Dieudonné, his private secretary. He gave them and others responsibility for the awareness campaigns, mobilisation, supervising recruitment and the army, along with various political matters such as liaising with the relevant groups and parties.2827 1062. The defence suggests that despite this account, P-0014 also described Mr Lubanga’s arrest and transfer to Kinshasa as coming as a complete surprise to the delegates, which caused panic.2828 The defence notes P-0041 stressed the “manu militari”2829 nature of the transfer of the delegates to Kinshasa, and it highlights his account that no arrangements were made in Kampala for the September 2002 appointments within the UPC.2830 However, the Chamber understood P-0041 used the expression “manu militari” to describe his involuntary transfer to Kinshasa. Furthermore, P-0014 testified that although the precise moment of Thomas Lubanga’s arrest came as a surprise, the latter had had the foresight to make advance arrangements, given the information that was in circulation.2831 In all the circumstances, P-0014 and P-0041 have not given contradictory evidence on this issue. 1063. The prosecution relies on the evidence of P-0014 and P-0041 to support the suggestion that between July 2002 and the end of August 2002 Thomas Lubanga was in contact with Richard Lonema and others in Bunia.2832 1064. The defence contends that this evidence which involved telephone contact between the detainees and the UPC headquarters in Bunia is implausible because, as P-0041 accepted,2833 mobile telephones were inoperative in Bunia.2834 1065. P-0014 testified that Thomas Lubanga talked with Richard Lonema at some point during his detention.2835 He said Mr Lonema received orders from Thomas Lubanga by telephone while he was acting on the accused’s behalf, between July and August 2002.2836 P- 0014 gave evidence that members of the UPC at the headquarters in Bunia used satellite telephones because there was no cell phone network.2837 P-0014 also testified that the detainees at DEMIAP had cell phones,2838 although this evidence was contradicted by P-0041, who suggested that their mobile phones were confiscated and the detainees at DEMIAP had no means of communication.2839 1066. P-0041, who was in Kinshasa at the same time as Thomas Lubanga, agreed there had been communication between the accused and Bunia in August 2002, and as a result the accused discovered that Bunia had been occupied by RCD-ML dissidents.2840 P-0041 testified that when the delegates were released from DEMIAP they travelled from their hotel nearly every day in order to visit Thomas Lubanga, who was held at the Grand Hotel. 2841 The accused gave them a telephone to contact him.2842 1067. The Chamber is uncertain of P-0014’s evidence that the detainees were able to communicate by cell phone whilst they were detained at DEMIAP, given the circumstances of their detention and the evidence just rehearsed. However, it is sure that contact by telephone was possible after they were moved to “house arrest” in a hotel, (no later than the end of July/early August 2002).2843 1068. The defence submits P-0041’s evidence does not support the prosecution suggestion that there was concerted action between the accused and the leaders of the armed rebellion.2844 The Chamber has concluded, however, that his evidence, as corroborated by P-0014, has demonstrated that the accused and at least some of his alleged coperpetrators were in contact with each other while he was in Kinshasa and Thomas Lubanga thus had the opportunity to give orders and directions. The Chamber found the evidence of P-0014 and P-0041 to be consistent, credible and reliable. 1069. In addition, P-0041 gave evidence that Richard Lonema, who worked with Daniel Litsha, represented Thomas Lubanga whilst the latter was in detention.2845 By this he meant Richard Lonema acted in place of the President of the UPC in Bunia.2846 P-0041 did not know who appointed Richard Lonema as Thomas Lubanga’s representative, but he suggested it was probably the President of the UPC himself because “I don’t think another person would appoint you to act on behalf of a different official”.2847 1070. P-0014 gave similar evidence that Richard Lonema stood in for the accused and he discharged the routine duties of the president, including supervising all the activities of the army such as those that concerned recruitment, military rations, equipment and the army’s general well-being. In addition, he maintained contact with various external groups. 2848 P-0014 testified that Richard Lonema publicly indicated that he was standing in for the President.2849 As mentioned above, P-0014 said that Richard Lonema received orders from Thomas Lubanga while he was acting on the accused’s behalf between July and August 2002, and he discussed general policy matters with the accused.2850 1071. P-0002 testified that during this period Richard Lonema was “like a vice-president” because Thomas Lubanga was absent from Ituri.2851 He indicated that a rally was held in Bunia, attended by a large number of UPC members, including Bosco Ntaganda, Floribert Kisembo and Chief Kawha, at which Richard Lonema represented the UPC. 2852 Colonel Maguru represented the Kinshasa government, whose role was to reconcile the opposing groups in Bunia.2853 (3) Recruitment and training before the takeover of Bunia (Summer 2002) 1072. The prosecution submits that throughout the summer of 2002 the co-perpetrators each contributed to the implementation of the common plan – namely, establishing political and military control of Bunia – by setting up training camps, recruiting young people (including children under the age of 15) and securing weapons and uniforms for the recruits. The overall objective was to remove the RCD-ML in order to take control of Bunia in the name of Thomas Lubanga and the UPC/FPLC.2854 1073. The defence disputes the suggested involvement by Thomas Lubanga or the UPC in the mutiny against the RCD-ML in April and May 2002, given he was absent from Ituri for long periods.2855 Since the accused was abroad or in detention, the defence submits he could not have contributed to a large-scale recruitment campaign between May and August 2002, as argued by the prosecution. 2856 It is said Mr Lubanga’s activities within the FRP, which did not have an armed wing, were of a purely political nature. 2857 The defence suggests Thomas Lubanga would only have learnt about the existence and outcome of the recruitment campaigns once he returned to Bunia in late August 2002.2858 1074. P-0038 testified that he joined “the army of the UPC“ in 2001,2859 after Chief Kahwa and Bosco Ntaganda held a meeting with the whole village of Mabanga, including children under the age of 15, during which they were encouraged to join the army.2860 After the meeting, vehicles were “loaded up with young people”, including children under 15, who were taken to Mandro for training.2861 Chief Kahwa was known at the time to be the leader of the training centre at Mandro.2862 1075. P-0038 suggested he was Chief Kahwa’s bodyguard at Mandro between April and September 2002,2863 and he accompanied him to the frequent meetings he held in Katoto, Barrière and other villages.2864 Chief Kahwa provided information to parents about sending their children, and others, to be trained as soldiers.2865 On these occasions Chief Kahwa was dressed either in military uniform or civilian clothing, and his bodyguards carried his weapon. 2866 Chief Kahwa indicated to those with whom he spoke that the Lendu were threatening the villages, and they were asked to assist by sending children they needed for training at Mandro.2867 He threatened that if they did not assist, when war came to their town “we would not come to rescue them”.2868 1076. Children were made available following these meetings,2869 and the new recruits were driven to the training centre at Mandro in vehicles provided by traders. They were accompanied by Chief Kahwa and his commanders.2870 The vehicles were either given voluntarily or the commanders seized them from the traders.2871 Although P-0038 did not see children taken forcibly, they arrived at Mandro immediately after the meetings.2872 These trips to the villages were frequent,2873 and boys as well as girls “volunteered”.2874 As discussed above,2875 P-0038 was, generally speaking, a credible and reliable witness. 1077. P-0116 testified that the recruitment of children continued during the summer of 2002 “because the UPC was striving to consolidate its position as a strong political movement in the Ituri region. […] And this was common knowledge to everyone.”2876 1078. Other witnesses testified about the recruitment of children at this time. D-0006 joined the UPC towards the end of May 2002 and he was trained at Mandro. 2877 P-0046 was told about the Hema recruitment campaigns in Bunia and elsewhere in March, April and July 2002.2878 1079. D-0037 left the APC in 2002, along with other soldiers, and he joined a group in order to defend the Hema community, for which Chief Kahwa set up a training centre in Mandro, involving Bosco Ntaganda. 2879 D-0037 emphasised that this group only became the FPLC when Governor Lompondo was driven out of Bunia.2880 1080. D-0019 heard that the mutineers withdrew from Bunia around July 2002 in order to live in Mandro, where there was some form of military training. 2881 He said that Floribert Kisembo, Commander Tchaligonza and Bosco Ntaganda were the leaders of the mutineers, although Chief Kahwa was “a leading figure in that particular group”.2882 There were discussions in the surrounding areas about the recruitment and training of new soldiers at Mandro.2883 1081. P-0014 testified that during the summer of 2002, in accordance with the UPC’s plan, the recruits were trained to fight against their primary enemy, the RCD-ML.2884 P-0014 suggested that the Lendus, whom the UPC had been fighting for some time, were a secondary target. 2885 The main military leaders during July and August 2002 included the Chief of Staff Floribert Kisembo, Bosco Ntaganda and Chief Kahwa.2886 1082. P-0016, who was a former APC soldier, described his arrest by the Ugandans and the visits he received, whilst in detention, from Floribert Kisembo who told him to organise all the APC soldiers he knew so as to form a new army.2887 FPLC soldiers took the witness, and other former APC soldiers he had gathered together, to the camp at Mandro in August 2002. Bosco Ntaganda decided they would teach young soldiers how to use the weapons they had received from the UPC. 2888 P-0016 stayed at the camp for about 10 days. 2889 He was appointed to a position within the FPLC by the end of August or early September.2890 P-0016 indicated that the accused was the President of the UPC whilst he was at the camp at Mandro. 2891 1083. The defence submits that P-0016’s evidence demonstrates that his training at Mandro and appointment to a post within the UPC/FPLC predate Thomas Lubanga’s return to Bunia. 2892 It is suggested this proves the armed forces who took over Bunia were under the command of Floribert Kisembo and other rebel leaders, and Thomas Lubanga played no role in the recruitment of soldiers acting under their orders.2893 In light of P-0016’s evidence as set out above, the Chamber is not persuaded that his appointment took place before Thomas Lubanga returned from Bunia. The role of the accused with respect to the soldiers that took over Bunia is considered below. (4) The takeover of Bunia (August 2002) and the formal establishment of the UPC/FPLC as a political and military organisation 1084. It is the prosecution’s submission that the UPC was responsible for the takeover of Bunia on 9 August 2002.2894 1085. The prosecution relies on a letter sent on 6 June 20022895 from Governor Molondo Lompondo to the President of the RCD-ML, to suggest that Thomas Lubanga and his movement, the UPC, were organising a militia in Mandro comprised of the Gegere tribes, in order to create an independent state of Ituri and to remove the RCD-ML.2896 It is argued Mr Lubanga had the support of Chief Kahwa Panga Mandro, and they recruited young people between the ages of 9 and 13, in defiance of the prohibitions of the UN, the Organisation of the African Union, and the Lusaka Agreements against the use of child soldiers. 2897 Governor Lompondo warned of a possible attack by Thomas Lubanga’s militia.2898 1086. The defence suggests this letter from Governor Lompondo may not be genuine, on the basis it is an unauthenticated copy and the prosecution failed to describe the circumstances in which it came into the possession of the UN. Furthermore, it is said there is no evidence as to who provided it to the prosecution and it is suggested that it appears to have come from someone whose antipathy to the accused is well known, but who was not interviewed.2899 When this document was admitted from the bar table, the Chamber indicated that although it was admissible, its weight, authenticity and reliability would be dealt with at a later stage.2900 1087. The letter bears the letterhead of the RCD-ML, it is dated, and it carries what appear to be an official stamp and the signature of the Governor of Ituri, Mr Molondo Lompondo. 2901 The prosecution obtained it from the United Nations on 24 January 2005, before the arrest warrant against the accused was issued. No explanation has been provided as to why a false document of this kind would have been provided at that stage to the UN and otherwise its validity has not been previously questioned. However, given there is no evidence before the Chamber as to the circumstances in which the document was drafted or obtained, it has not been relied on for purposes of this Judgment. 1088. P-0024 and P-0014 testified that Bunia came under the control of the UPC in August 2002.2902 P-0014 gave evidence that on 9 August the UPC drove out the RCD-ML.2903 After the fall of Bunia the President (Mr Lubanga) made it known he was very proud of them, since they had worked to achieve this objective. 2904 D-0011 gave a somewhat different account, in that he attributed the expulsion of the RCD-ML from Bunia to mutineers within the armed wing of the RCD-ML (the APC), who were eventually joined by the UPC.2905 He indicated the UPC became the UPC-RP – in the absence of Thomas Lubanga, who was in prison – when a core group of soldiers from the RCD-ML mutinied and split away from the APC, with the assistance of the UPC.2906 This account is partially corroborated by D-0019, who said that the takeover of Bunia in August 2002 was not linked to the UPC of Thomas Lubanga, and instead the mutineers only decided to entrust the leadership to Thomas Lubanga at the end of August 2002.2907 1089. The prosecution refers to the 17 April 2002 “Political Declaration of the Managerial Staff of Ituri in the Face of Institute Injustice by the RCD/KIS-ML under His Excellency Mr. Mbusa Nyamwisi’s Presidency” (“Political Declaration of 17 April 2002”), signed by Thomas Lubanga, which accused the RCD-ML of ethnic discrimination, and of seeking to take over Ituri.2908 The prosecution suggests this demonstrates that Thomas Lubanga demanded the departure of Mr Mbusa Nyamwisi and Governor Molondo Lompondo.2909 1090. The defence also relies on the Political Declaration of 17 April 2002, 2910 contending that Thomas Lubanga’s signature is not accompanied by any reference to a position held by him in the UPC – indeed, the UPC is not mentioned throughout the entire document.2911 The Political Declaration of 17 April 2002 contains the following: 5. Ask our soldi

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