ICC-01/04-01/06-T-43-EN [23Nov2006 CT WT] 1/122 SZ PT 1 INTERNATIONAL CRIMINAL COURT 2 SITUATION DEMOCRATIC REPUBLIC OF CONGO 3 Case No: ICC-01/04-01/06 4 Transcription No: ICC-01/04-01/06-T-43-EN 5 6 Thursday, 23 November 2006 at 10.04 a.m. 7 OPEN SESSION 8 Before: His Honour Judge Claude Jorda (Presiding Judge) 9 Her Honour Judge Sylvia Steiner Her Honour Judge Akua Kuenyehia 10 PRE-TRIAL CHAMBER I 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 ICC-01/04-01/06-T-43-EN [23Nov2006 CT WT] 2/122 SZ PT 1 [10:04 a.m.] ICC-01-04-01-06-T-43-EN 09:54:45 2 OPEN SESSION 10:04:13 3 [10:04 a.m.] 10:04:14 4 THE USHER: All rise. The International Criminal Court is 10:04:34 5 now in session. 10:04:36 6 [10:04 a.m.] 10:04:37 7 PRESIDING JUDGE JORDA (interpretation): Court is in session. 10:04:41 8 Please bring Mr Lubanga Dyilo into the Court. Good morning 10:04:44 9 everyone. 10:04:48 10 [10:04 a.m.] 10:04:49 11 [Mr Thomas Lubanga Dyilo entered the courtroom] 10:05:07 12 PRESIDING JUDGE JORDA (interpretation): I would like to 10:05:14 13 welcome Mr Lubanga Dyilo. Good morning. I would like to 10:05:19 14 welcome all the representatives of the victims, the Office of 10:05:26 15 the Prosecutor and the Defence. 10:05:27 16 [10:05 a.m.] 10:05:27 17 We have a 30-minute delay and we shall try to keep up with 10:05:32 18 this. We cannot catch up over lunchtime, because the canteen 10:05:37 19 closes at a certain time and we would like everybody to have 10:05:40 20 at least one hour of lunch. We are going to stop 10:05:44 21 [as interpreted] from 10 to 11.30. We shall resume at -- and 10:05:50 22 stop at 12. If it is possible, we shall resume at 4.30, for 10:05:57 23 at least half an hour. Is everybody in agreement? All right. 10:06:01 24 If everybody agrees, then I shall ask Mr Flamme now to 10:06:07 25 continue to address the Court. ICC-01/04-01/06-T-43-EN [23Nov2006 CT WT] 3/122 SZ PT 10:06:09 1 ME FLAMME (interpretation): Thank you, Mr President. Thank 10:06:14 2 you, your Honours. Just to give you the structure of what is 10:06:25 3 going to follow today. I am going to give an overview, the 10:06:39 4 way in which the Prosecutor presented his case, and I shall 10:06:43 5 refer, in the main, to the most important document, which is 10:06:50 6 the document containing the charges. 10:06:51 7 [10:06 a.m.] 10:06:52 8 This document containing the charges will be subjected to an 10:06:59 9 in-depth critique by my colleague, Ms Taylor, tomorrow, but I 10:07:06 10 shall start with matters of fact and law and raise a certain 10:07:15 11 number of fundamental problems that this document containing 10:07:20 12 the charges raises, in our view. 10:07:23 13 [10:07 a.m.] 10:07:23 14 To begin with, this -- I shall try to follow a plan as much as 10:07:30 15 possible and I shall start with the first day in which the 10:07:39 16 Prosecutor presented his evidence -- that is on 13 November, 10:07:45 17 if I remember correctly. 10:07:47 18 [10:07 a.m.] 10:07:47 19 The Prosecutor referred to, I think, at the beginning of his 10:07:50 20 presentation -- he spoke of Mr Thomas Lubanga as not only a 10:07:56 21 politician, but also a military commander, and this allegation 10:08:10 22 is one of the bases of the document containing the charges. 10:08:16 23 The Defence thinks that the Prosecutor has not provided proof. 10:08:23 24 [10:08 a.m.] 10:08:23 25 The Defence would like to point out to the Pre-Trial ICC-01/04-01/06-T-43-EN [23Nov2006 CT WT] 4/122 SZ PT 10:08:26 1 Chamber -- and this is very important -- that the Prosecutor 10:08:30 2 himself presents the FPLC as a well-structured army. He, 10:08:39 3 himself, said that this army was structured like a 10:08:44 4 conventional army -- I might even say that he's referring, by 10:08:52 5 analogy, to European armies with organisation, and so on, and 10:09:00 6 so forth. 10:09:01 7 As the Prosecutor himself says, there was a Chief-of-Staff, 10:09:08 8 who was Mr Kisembo, as we know, who is a general in the 10:09:12 9 Congolese army today. 10:09:14 10 [10:09 a.m.] 10:09:15 11 In addition, there was a national Minister of Defence -- well, 10:09:19 12 not "national", because Ituri was at the time -- that was not 10:09:27 13 a part of Congo, that was separate from the rest of the 10:09:31 14 country, because this is never what the UPC intended, that is, 10:09:36 15 to secede from Congo. 10:09:39 16 [10:09 a.m.] 10:09:41 17 We are referring here to August 2002, when the Hema genocide 10:09:47 18 was being prepared. We are going to come back to that. In a 10:09:52 19 way, in self-defence, there was this mutiny and this mutiny 10:10:00 20 instituted political power in September 2002, through the 10:10:05 21 military junta. This political power created an 10:10:11 22 administration which was not national, but separate, because 10:10:15 23 the situation was such that the Congolese national government 10:10:23 24 was not in a position to defend the population, and could not 10:10:33 25 meet the needs of the population. So it can be said that ICC-01/04-01/06-T-43-EN [23Nov2006 CT WT] 5/122 SZ PT 10:10:36 1 there was a vacuum in the State and this is an important 10:10:40 2 aspect of this case. 10:10:43 3 So I said that there was a Minister of Defence, who was Chief 10:10:47 4 Kahwa. Chief Kahwa took over in August 2002, the leadership 10:10:54 5 of the military junta of the mutiny, within the APC in order 10:11:05 6 to counter the genocidal plans of this army, which was the 10:11:10 7 RCD-K/ML Kisangani Liberation Movement. We shall see why 10:11:21 8 later on Chief Kahwa very quickly, this is, as early 10:11:24 9 as November 2002, in turn defected for the second time. This 10:11:31 10 man is a mutineer, because this is the second time that he 10:11:36 11 mutinied. Why did he do this? We shall see that later. 10:11:40 12 However, what I wanted to say here is that there was a 10:11:44 13 Minister of Defence. 10:11:44 14 [10:11 a.m.] 10:11:48 15 Thomas Lubanga was a head of government in the strict sense of 10:11:56 16 the expression. When the Prosecutor seeks to allege that he 10:12:03 17 was a military leader, I would like to say in response that 10:12:08 18 Mr Lubanga never received any military training. He had no 10:12:12 19 rank in the army and he had no military history and, once 10:12:20 20 again, the Prosecutor fails to prove his allegations. You 10:12:23 21 cannot just say things about Mr Lubanga; you must prove them. 10:12:27 22 [10:12 a.m.] 10:12:31 23 And I have seen no evidence adduced to this end, except for 10:12:35 24 very circumstantial evidence which shall -- I shall not 10:12:38 25 describe as evidence in any case. ICC-01/04-01/06-T-43-EN [23Nov2006 CT WT] 6/122 SZ PT 10:12:41 1 [10:12 a.m.] 10:12:42 2 In the official documents which are in the Prosecutor's case 10:12:46 3 file, we find the personal particulars -- that is, the arrest 10:12:52 4 file -- which identifies Mr Thomas Lubanga. This official 10:12:58 5 Congolese document describes Mr Lubanga as a politician. That 10:13:05 6 is a judicial identification document. 10:13:06 7 [10:13 a.m.] 10:13:09 8 Lastly -- or almost lastly -- if Mr Lubanga was taken to a 10:13:18 9 military court in Congo, it was solely because this court had 10:13:24 10 jurisdiction under Congolese law for war crimes. It did not 10:13:28 11 mean that, in Congo, Mr Lubanga was considered as a soldier. 10:13:34 12 This is a very important point.