Did Thomas Lubanga Dyilo systematically recruit children under the age of 15 as soldiers or did prosecutors recruit children to lie so that the former Congolese rebel leader will be convicted? That's the question three judges will deliberate on in the coming months. They will hand down the International Criminal Court’s first judgement.

By Thijs Bouwknegt, The Hague

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"Throughout the course of this trial ... it has been impossible for me to recognise myself within the context of the actions ascribed to me and the intentions attributed to me," says Thomas Lubanga. Dressed in a dark suit and tie, ‘Papa Lubanga’ denied that to the children in his movement that he was “some sort of semi-god whose praise was chanted during training and during the visits he made to the camps.” It was a rare moment when he “expressed his 'feelings'” since he was flown from Kinshasa to The Hague in 2006.

Lubanga is the first detainee at the permanent court that brings to justice the worst human rights abusers. Every phase in the trial has been historic. So were closing arguments last week. The 92 year-old former Nuremberg prosecutor Bejamin Ferencz concluded the presentation of the prosecutor’s case against Lubanga.

“Let the voice and the verdict of this esteemed global court now speak for the awakened conscience of the world,” Ferencz told the court. On his right in the courtroom: Chief Prosecutor Luis Moreno Ocampo. Among the spectators in the public gallery: Angelina Jolie, who has been listening to a summary of prosecutor’s case on Thursday.

'Children need mothers, not commanders'
The heart of that case: “children need mothers, not commanders.” Prosecutors allege that Lubanga is guilty of conscripting, enlisting, and using child soldiers during the ethnic conflict in the Ituri region of northeastern Democratic Republic of Congo (DRC) in 2002 and 2003.

Deputy Prosecutor Fatou Bensouda made it very clear. “The evidence, Mr. President, proves that Thomas Lubanga is individually responsible for the crimes committed against the children of Ituri. His conviction, we submit, will mean justice for thousands of victims and will send a clear message: There will be no impunity for those who recruit children.” She insisted that Lubanga’s guilt stretches beyond reasonable doubt; it is “beyond any possible doubt,” she said.

Although prosecutors have given thousands of child soldiers a voice during the trial, 123 direct victims of Lubanga’s alleged crimes were part of the proceedings. Six of their representatives also addressed the court, asking judges to enter a guilty plea. “In any event, our clients have never known Thomas Lubanga as a human rights activist,” said Luc Walleyn. On the other side of the courtroom sat Lubanga, shaking his head in disbelief.

'Serious dysfunction'
His lawyers had the floor on Friday. They declared the trial had been characterised by “serious dysfunction” on the prosecutor’s part. Catherine Mabille recalled the five and a half years Lubanga had already spent in prison and the two occasions that his trial was stayed. She reminded the court that Ocampo’s office had withheld exculpatory documents and did not at all times play by the court’s rules.

Lubanga’s lawyers rebutted the prosecution’s image of Lubanga as someone who consciously wrecked the lives of many children. On the contrary, they claimed, Lubanga was not a military leader. He was rather a politician who tried to fight against the inhumane conditions of the Congolese people. Moreover, Lubanga “sincerely” prohibited recruitment of child soldiers. “He has always tried to prevent the crimes he is accused of,” co-counsel Jean-Marie Biju-Duval added.

The defence went on to say that the prosecutor’s image of Lubanga is the product of manipulation. Prosecutors had called nine witnesses who were former child soldiers. But “these were false witnesses. They were not real child soldiers,” said Mabille, arguing that eight of them had never served in Lubanga’s Patriotic Forces for the Liberation of the Congo (FPLC) and that the ninth joined later.

Manipulation
Mabille said the court has seen the product of “organised manipulation of witnesses,” pointing at the role intermediaries had played in finding witnesses for the prosecution. “The intermediairies knew what to produce,” said Mabille, accusing them of going to Congolese villages “recruiting children to tell they were child soldiers.” They invented statements and lied about their ages in exchange for drinks and money, the lawyers claim. Moreover, the intermediaries were not just agents of the prosecution, but also of President Laurent Kabila’s government.

The prosecutor did not carry out proper investigations, concluded Mabille, observing that Ocampo himself had said he never confirmed the ages of his witnesses. But now “school records demonstrate that these alleged child soldiers were studying at school, at the time they allegedly fought in Lubanga’s army,” Mabille said. According to her, the prosecution witnesses were older than they had claimed. For the defence it is clear: the evidence is unreliable and Lubanga should therefore be acquitted.

Now that prosecutors, victims’ lawyers and defence lawyers have highlighted their main arguments, the time has come for the judges to deliberate. Judge Adrian Fulford promised that he and his two colleagues will deliver their judgement, “within a reasonable period of time.”