Voices from the ground: Reactions to final ICC Lubanga judgment

A community in Ituri, eastern DRC, watches a a hearing the Lubanga trial in 2009. © Human Rights Watch


Presenter (Didyne Uweka):  Welcome dear listeners, you’re following us from around the world. Today, we are going to present a special program that is part of the Interactive Radio for Justice and Peace Project.

On December 1, 2014, the Appeals Chamber of the International Criminal Court (ICC) held a public hearing, in which Thomas Lubanga was sentenced to 14 years in prison. You will hear the details about it in this program. And for this, we have in our studio Mr. Nicolas Kuyaku, who is the communications officer with the ICC’s Ituri field office.

Mr. Nicolas Kuyaku, hello!

Nicolas Kuyaku (Guest): Hello!

Presenter:  Tell us how things went in court at The Hague. Before that, I’d like to remind listeners that they can participate live in this studio. They will get some clarification regarding their concerns.

We are discussing the Thomas Lubanga verdict with Nicolas Kuyaku. The hearing took place on site at The Hague, could you tell us how it went?

Nicolas Kuyaku:  Thanks Didyne, first for the invitation, and especially for the opportunity you’ve given me to shed some light on the decision by the Appeals Chamber that was handed down yesterday in The Hague, at the ICC headquarters.

But with your permission I would like to provide a little background, in other words to put the events in context.

Presenter: Go right ahead.

Nicolas Kuyaku:  Mr. Thomas Lubanga was handed over to the International Criminal Court on March 17, 2006, thanks to the cooperation of the Kinshasa Government. His trial began on January 26, 2009. During this trial, a lot of things happened. The judge of Trial Chamber I issued its verdict on March 14, 2012. He found Mr. Thomas Lubanga guilty of enlisting, as you said, and especially the forced use of children under 15 in the UPC during the armed conflicts.

That July, the judges sentenced him to 14 years in prison, as you said in your introduction. And one month later, once again in 2012, the judges issued an order to specify the procedures for determining the measures applicable to reparations activities on behalf of the victims in the case of the Prosecutor v. Thomas Lubanga.

As you know, Didyne, at the ICC level if a party is wronged in the first degree, he has the opportunity to lodge an appeal. That’s what Lubanga did in his defense. Lubanga first of all challenged the conviction: he said he’s not guilty, he’s not the one who enlisted children, he never enlisted minors. Second, he appealed the 14 year prison sentence. And he again challenged the measures concerning reparations to the victims. That’s the law; the privileges granted to all parties in the conflict.

As for the ICC prosecutor, at his side too, he challenged the sentence, which he felt was too mild compared to the magnitude of the crimes that Thomas Lubanga was found to have committed in Ituri.

So, two years later, the judges of the Appeals Chamber just upheld the decision of Trial Chamber I in much simpler terms, they upheld, or rather, they renewed the ruling that Trial Chamber I issued in 2012, finding Mr. Lubanga guilty of enlisting, and set the penalty at 14 years. So that’s it, I just wanted to put the events in context at least.

Presenter:  So, to answer the question, tell us how things went yesterday at The Hague.

Nicolas Kuyaku:  Ok, thank you. Yesterday, the Appeals Chamber proceeded by reading the ruling, in other words, it upheld Thomas Lubanga’s conviction, while at the same time it also upheld the 14-year sentence. It was not a debate, it was an open hearing, the judge came, he read. Because the Trial Chamber I ruling stretched out over 593 pages. But yesterday, it was nine pages. Just a summary of the Appeals Chamber’s decision. So Mr. Thomas Lubanga currently remains incarcerated, the 14 years have been upheld. This was the last resort; there are no more appeals to be lodged.

Presenter:  Nicolas, why did the Appeals Chamber dismiss Thomas Lubanga’s arguments?

Nicolas Kuyaku:  The Appeals Chamber dismissed Thomas Lubanga’s arguments which claimed that the proceedings were unfair. But he did not substantiate them with evidence that could allow the judges to reflect on his claims or to make a decision regarding responsibility.

Presenter:  The Appeals Chamber has just upheld the 14-year prison sentence, as you said, but he wasn’t taken to The Hague just now. He has already been there a long time, I would say. Will those years count against the sentence?

Nicolas Kuyaku: I should clarify, he is not in prison for the simple reason that he is presumed innocent. At the ICC, it is called the Detention Unit. He’s in a holding cell, and now he will go to prison since he has been convicted. His prison sentence is 14 years, but they will deduct the number of years he spent in custody. If you do the math, Didyne, from March 2006 to December 1, 2014, that’s eight years. 14 minus eight, that makes six years, in other words, Thomas Lubanga will serve out a sentence of six years in a prison of his choice.

Presenter: Exactly, let’s talk about that—the prison of his choice. Some countries are ready to receive Thomas Lubanga for this purpose. Can you tell us which ones?

Nicolas Kuyaku:  Yes. In this context, there have been agreements that some States party to the Rome Statutes have entered into with the ICC, to receive everyone convicted by the court so that they may serve their sentences in their prison facilities. This is the case of the Netherlands, France, Belgium, Germany, Colombia, Denmark, and in Africa, Botswana and Mali. Now it is up to Thomas Lubanga and his lead counsel to choose the country where he will serve out his sentence. He will propose it to the ICC President. The ICC President will then have to contact the host countries that agree to receive Mr. Thomas Lubanga, so that it may determine the practical arrangements to be made. The country must also provide guarantees to the International Criminal Court, in the event of an escape, what will be done to recapture the prisoner.

Presenter:  That was the same concern with Steve Amoti, from Pluto in the mining area [90 km north of Bunia, in Djugu territory], who asked the same thing: Thomas Lubanga, since is he going to spend 14 years in prison since the verdict was announced yesterday. Will they count from the beginning until yesterday?

Nicolas Kuyaku:  Yes, from 2006 to date, he already totals eight years; there are still six years to spend in prison. I also want to give a clarification. On July 15, 2015, the judges will review the conditions of detention, since it amounts to the two-thirds of his sentence. On July 15, the judges have the opportunity to see whether the sentence can be revised downward.

Presenter: I had another question from a listener: will he come back here to the Congo or …?

Nicolas Kuyaku: Like Mathieu Ngudjolo, that will depend on Thomas Lubanga and his lawyer. Once his time has been served, he can decide where to go. But I think he is a Congolese citizen, he can return to his country because he has a lot to do.

And for you [Didyne], where would you prefer him to serve his sentence? In which country?

Presenter: I don’t know. It’s going to depend on him, they will need to ask him, so that he can pick the country. As for us, we have nothing to say.

Another question [from a listener]: Thomas Lubanga’s family, what’s going to happen to them?

Nicolas Kuyaku: The family has been informed I believe, starting yesterday we put out a lot of publicity regarding that ruling. Even this morning we held a press briefing, yet we continue to reinforce it and respond to various calls on the decision by the Appeals Chamber. And I was even in contact with activists from the UPC [Lubanga’s Union of Congolese Patriots].

Presenter: Exactly, what do they have to say about it?

Nicolas Kuyaku:  They promised me that as soon as possible, they will make their party’s official position regarding the verdict public.

Presenter:  We are going to move on to another question, but we also have a listener on the line, Hello!

Listener: I would like to respond to Thomas Lubanga’s conviction,

Presenter: Yes, we’re listening.

Listener: I’m calling from Nizi [31 km in the mining area north of Bunia], Thomas Lubanga was sentenced to eight years, is there no way to make it understood whether Thomas Lubanga is really guilty? Because for us Iturians, we know that the ruling is really unfair.

Presenter: Nicolas Kuyaku do you understand the question?

Nicolas Kuyaku:  He says it’s an unfair trial, Thomas Lubanga never enlisted children.

Presenter: Caller, please be clear then, what are you saying?

Listener: Thomas Lubanga did not enlist children, even if there are children who were brought there to testify. But we do not believe that these are the true child soldiers, thank you.

Nicolas Kuyaku:  Thank you, my friend from Nizi, for the question. The investigations were conducted on both sides. The prosecutor conducted his investigations in Ituri, Thomas Lubanga also did so through his defense. Everyone provided evidence to the judges of the ICC. The judges have just made their decision. At this stage Didyne, I am not qualified, I am not competent to issue a legal or judicial review of the judges’ decision. In any case the decision has been made.

Presenter: I think the gentleman is satisfied. We will go to this SMS from Yvone, who asks why only Iturians were targeted for conviction.

Nicolas Kuyaku:  Mathieu Ngudjolo was acquitted, he’s an Iturian. Yvone, I would like to say this: the court was not created to convict Iturians. Laurent Gbagbo is not Iturian, he is currently at the ICC. His trial will begin next year. We must avoid this way of thinking: that they convicted the Iturian. So the ICC as an institution is against Iturians. No. You can not create an international institution only for one district in the DRC. No. The institution is permanent. It is international. Its mission is to fight impunity.

Presenter:  Maybe it is important talk more about the difference. Why Ngudjolo was acquitted and why Thomas Lubanga was convicted.

Nicolas Kuyaku:  These are two different trials, Thomas Lubanga for enlisting minors, children under 15 years old. Mathieu Ngudjolo for the situation in Bogoro with operationwipe Bogoro off the map of Ituri.” So, beyond a reasonable doubt, the evidence produced by the Prosecutor did not enable the judge to establish Mr. Ngudjolo’s guilt, even though his name was mentioned. But there was no evidence seen with which the ICC judges could establish criminal responsibility. That’s why he was acquitted. In addition, when someone is brought before the ICC that does not mean that he will be convicted automatically. He has his resources, he has his attorneys, if the work was done well, he can receive an acquittal like Mathieu Ngudjolo did.

The judges who tried Mathieu Ngujolo are not the same as those who tried Thomas Lubanga. They are two different chambers.

Presenter:  We have a question here, it’s anonymous. This person says: “you in the studio, you are witnesses to everything that happened around 2000, unless you are not Iturian. Otherwise, today we would be talking about genocide if there was no Thomas Lubanga.”

Nicolas Kuyaku:  In other words, he recognizes that there was a conflict and thanks to Thomas Lubanga the Ituri people avoided genocide. That’s what I understand. But when talking about 2000, then the ICC is not involved. The ICC has jurisdiction over crimes committed after 1 July 2002. Earlier, he needs to refer to the national courts.

Presenter:  This time, we’ll have a reaction from the Honorable John Tinanzabo [Interim President of the UPC], you will hear him from time to time.

Nicolas Kuyaku, what did you think of Thomas Lubanga’s reaction when he realized that he would be convicted?

Nicolas Kuyaku: I saw Thomas, he was calm. Also, tomorrow we are going to broadcast the images on RTNC [Congolese National Radio Television] and RTS [Radio TV Salama]. I saw a Thomas who was serene, calm, and self-assured. And occasionally he talked with his lawyer, Catherine Mabile.

Presenter:  We will take this caller. Hello … Hello … Can you hear us?

Lokana, listener calling from Pluto:  If Thomas Lubanga requests bail, can he get it?

Presenter: Thank you sir.

Nicolas Kuyaku:  The final verdict has already been handed down. It’s no use. They will not give it to him. But what he must remember is that on July 15, 2015, the ICC judges will review the conditions of incarceration, because next year Lubanga will already be two-thirds through his sentence. They can decide to release him or reduce his sentence.

Presenter: We are continuing with the response from John Tinanzabo [the President of the UPC, Thomas Lubanga’s party].

John Tinanzabo:  We just followed the ICC’s decision to uphold the sentence handed down by the trial judge. We’re sorry because the image [of the trial] at the ICC will never fly. It is wrong in light of what he had, in light of his contribution, and all the concerns, with great sacrifice he was able to demonstrate in Ituri during the difficulties that the Congolese people, abandoned, found itself facing in this part of the country.

For those like me who worked with him, his sentence is an injustice. And it’s astonishing. Convicting someone on the basis of mere allegations and visual assessments of age. In the absence of objective evidence, it’s a blatant injustice. With respect to the activists of the UPC, our pain today will serve as instruments of our irreversible successes tomorrow, prison is hard and it is temporary. It doesn’t last forever. Thanks for everything.

Presenter:  You yourself saw this response from the Honorable Tinanzabo of the UPC.

Nicolas Kuyaku:  I have great respect for the Honorable Tinanzabo, he is my MP. He gave his views as President of the UPC. I have no comment to make on the subject.

Presenter:  We’ll continue with questions from our listeners who are following us from all over…[W]e are live in the studio with the communications officer from the Bunia office of the ICC, Mr. Nicolas Kuyaku, who is taking our questions.

There are people who are happy, there are those who are unhappy, I don’t know how you handle the situation?

Nicolas Kuyaku:  Even here in the court, there are always people who are happy and others who are unhappy. It’s always like that. That’s justice. That won’t change things.

Presenter: Let’s take this caller. Hello.

Listener:  Hello, it’s still me from Nizi. I heard the comments by Tinanzabo of the UPC. In any case we are very much in agreement with him in the sense that it’s really unfair, and it’s an injustice. It’s true.

We, the Iturian people, we do not agree with this justice.

Presenter: You don’t agree with this justice, with the ICC, or with what?

Listener: It really is an injustice.

Presenter: You’re the one who said it, sir. Let’s get the reaction from Nicolas.

Nicolas Kuyaku:  In any case, my dear friend from Nizi, thank you for your interest in this interactive program. It is your point of view, which we should not generalize. Even still, we must put things into perspective. You say “we Iturians,” but we’re passing the microphone around. The people are speaking, you will find that there is a different story. It would be wise not to make statements as if you represent Ituri public opinion. That is your personal opinion, which I respect.

Presenter:  Now we’ll get another response, this one anonymous. He said that when we were being massacred here in Ituri, where was the ICC? Everyone was forced to take up arms to defend themselves. The ICC corrupts people for false testimony.

Nicolas Kuyaku: The ICC is a supplemental institution. It serves as a support. The security of persons and their property are the sole responsibility of the Government. So to this question, we must also ask governments that succeeded one another, what did they do to prevent what happened in Ituri.

Secondly, if you insist that the ICC is now paying for statements, in other words, corrupting people, etc… Do you have any evidence that would allow us today to draw the conclusion that there was vast corruption in Ituri? I don’t think so. We must love justice. We must advance arguments with supporting evidence. There was never any corruption. I say this in my capacity as Communications Officer. The people who agreed to go testify and make statements have done so in order to reestablish the truth in the eyes of the international community.

Presenter: There is a caller on the line.

Listener:  Thomas Lubanga was sentenced to 14 years in prison, that’s case law. Second concern: he was sentenced for the enlisting minors. Compared to the one who committed the massacre in Bogoro, of these crimes, which one is worse than the other?

Presenter: The second question, here you want to compare the situations of Bogoro and Thomas Lubanga?

Listener: Yes, certainly that’s it.

Nicolas Kuyaku:  Case law, no. The trial was managed in accordance with the standard contained in our reference document, which we call ICC Rules of Procedure and EvidenceThat’s the first answer. Second, you are the one who is talking about genocide and massacres. In all the documents in the investigations conducted by the prosecution and the defense, reference is never made to genocide. I cannot speculate on things that are not officially brought up in the public domain.

Presenter:  We will be wrapping up this program in four minutes. Mr. Wandji from Mbidjo [120 km north of Bunia] said he also followed the trial of Thomas Lubanga. He says that he is his eldest son. There is nothing to comment on. If you are his son and you have not given your reactions.

Nicolas Kuyaku: Thank you but if he needs audiovisual support, he can go to the reception of Radio Canal Revelation, I’ll be available.

Presenter:  We are already coming to the end of this episode. Hello… yes we hear you.

Listener: I wanted to know how Lubanga took this ruling?

Presenter: We have already answered this question with Nicolas Kuyaku.

Nicolas Kuyaku: I can ask him the same question, if he was in Thomas Lubanga’s place, what would his reaction be?

Presenter: There, the question is asked. We have another person on the line

Listener: Hello. Can Mr. Nicolas prove to us that Thomas Lubanga was even there, and meanwhile the groups of Lopondo, Mbusa, and consort [government officials] have been mentioned in this massacre.

Nicolas Kuyaku:  In any case I ask our dear listener not to mention names because you do not have any evidence that they were involved in what happened. As for me, I have a professional obligation to tell you what my organization asks me to tell you. So I cannot tell you about people who are not mentioned in any decision. Let’s be careful. This is not a political program.

Presenter:  Innocent Katale says there is no justice on earth. These investigations are incomplete. He says that “these whites and agents of the ICC are ready to convict in order to get money. Those are his words. What’s true, he says, is that they have lost their parents and sisters starting in 2003. That’s Innocent Katale talking.

Nicolas Kuyaku:  He talks, he mixes up a lot of things. He talks of corruption, bias, and so on. In the end, what does he want? If he was recruited as a witness, if he was selected as victim to testify at the ICC, and people were criticizing his reaction. What would his position be? This is not because someone did the work, I was not chosen, and I have to question the result of the successful work done by others. That’s not right. We must have still a little respect for the work done by others.

Presenter:  We’ve come to the end of this episode, I don’t know if you have a closing message to send out to the listeners who followed us live.

Nicolas Kuyaku:  Thanks, Didyne. I will conclude with some information regarding reparations measures. That is to say, in the days to come, as soon as possible, the ICC judges will have to hand down an order to determine the measures applicable to activities for reparations to the victims. What will be the nature of these actions? They will be purely judicial. The judges will determine what we will do in Ituri after the work of consulting with the direct and indirect beneficiaries. This is what makes the difference between the ICC and other international legal institutions.

For the rest, I’m flattered by the quality of the questions and participation. And especially for the professional availability of communications from Canal Revelation, which has given us the opportunity to communicate with listeners scattered throughout the district.

We have provided the information since yesterday that Thomas Lubanga has been sentenced to 14 years, from which they will deduct the number of years already spent in detention.

Presenter:  We will conclude with this message from Daniel, who says thank you for Lubanga’s conviction.

Otherwise, dear listeners, we have come to the end of this special program on Thomas Lubanga, which is part of the Interactive Radio for Justice and Peace Project. On December 1, 2014, the Appeals Chamber of the International Criminal Court (ICC) made public the hearing of Thomas Lubanga, sentenced to 14 years in prison and to help us in the studio we had Nicolas Kuyaku, who is Public Awareness Officer for ICC/Ituri.


This is article was produced by and originally appeared on the International Justice Monitor, a project of the Open Society Justice Initiative.