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

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