Added: Gergory Morabito - Date: 13.11.2021 23:14 - Views: 36913 - Clicks: 8042
This article follows a criminal investigation for recruitment of child soldiers, by asking the following questions: how does one find child soldiers? How does one bring them onto the judicial stage? The article explores the different moments that marked the investigation by the Office of the Prosecutor in the first case brought before the International Criminal Court in The Hague, that of Thomas Lubanga Dyilo.
After describing the successive stages of the investigation, the article analyses the conditions under which former child soldiers testified before the ICC. The different moments that marked these legal proceedings bring to light the instability of the category of child soldier and the uncertainty that regularly threatens the labour of judicial elucidation. Since the early s, the soldiering experiences of children and youth have become a major subject of anthropological research.
The dominant image conveyed in these arenas is that of child victims — vulnerable, passive figures forcibly recruited into armed groups to serve as bodyguards, cooks and porters, and sometimes even trained in military discipline and weapons handling. The indignation aroused by this victim figure has led to the adoption of a series of international conventions since the late s deed not only to protect the rights of children but also to punish those responsible for their recruitment. Anthropological studies, conducted primarily in African conflict zones, have attempted to deconstruct the victim image associated with children at war by focusing more specifically on the different ways in which young combatants enter militias and armed groups.
Countering the dominant image of the vulnerable and innocent child, these studies have highlighted the figure of the child-as-actor in settings where life itself is militarised. The work of Danny HoffmanPaul RichardsSusan Sheplerand Myriam Denov for Sierra Leone; of Henrik Vigh for Guinea-Bissau; and of Christopher Blattman and Jeannie Annan for Uganda all stress the ability of children and youth to make choices, enter power relations and reverse the asymmetry that defines their relationships to adults.
For some, the break with civilian life reflects a refusal to be confined to camps entirely dependent on humanitarian aid, where people's mobility is carefully controlled and monitored.
The porosity of this line is evident in many of the narratives that researchers have collected, such as in Ben Mergelsberg's interviews with returnees from Joseph Kony's Lord's Resistance Army. While many of these returned fighters had been abducted at a very young age, some do not hide the pleasure they felt in killing and, conversely, the profound boredom that struck them on returning to civilian life. Notwithstanding this rich and fertile literature, one aspect remains largely unexplored: child soldiers called to testify before international criminal courts. The few studies that exist do not draw on ethnographic research.
For instance, legal scholar Mark Drumbl endeavoured to analyse the entry of the category of child soldiers into international criminal courts but, here again, in order to denounce the victimist perspective that dominates the judicial framing of the category, and to call for the criminal responsibility of adolescents who perpetrate crimes and violence to be taken into. Other research from the field of transitional justice, based on the analysis of trials before the International Criminal Court, highlights the difficulty judges have in accepting the testimony of witnesses in this category as evidence, given that their s of their abduction or participation in the conflict are often riddled with inconsistencies or vagueness Hola and Bouwknegt Yet a blind spot remains in the literature on the participation of child soldiers in trials: how is soldier produced?
How is one found? How are they made to look like an ideal child soldier? These are the questions I intend to explore. What interests me here is not so much describing the conditions in which child soldiers give their testimony, which are ultimately the same for all witnesses, as capturing what precedes the moment of testimony in the courtroom.
This article is based on an analysis of a judicial investigation concerning the case of Thomas Lubanga Dyilo, the very first to be tried for recruiting and enlisting child soldiers before the International Criminal Court ICC in The Hague. Between January and the present, I made several field visits to The Hague to follow proceedings in other cases concerning the recruitment of child soldiers. The region has endured an armed conflict since the late s, which is part of what is known as the Second Congo War see e. Prunier ; Stearns Rich in gold, diamonds, oil, wood and coltan, the province borders Lake Albert and Uganda to the east and North Kivu to the south.
The ICC's description of the conflict is that of a clash between two ethnic communities involved in a long-standing land dispute, the Hema and the Lendu. To be sure, the Belgian colonial regime aggravated the ethnic divisions between these two communities by favouring the cattle rearing and trading Hema to the detriment of the crop-growing Lendu.
In return, the Lendu formed self-defence forces and began to attack Hema villages with the support of individual Ugandan officers and certain rebel movements. The Hema responded by organising their own self-defence committees. Between anda series of opposing faction leaders struggled for power in Ituri. Reprinted with permission. Citation: Journal of Legal Anthropology 4, 1; This decision exacerbated the conflict in Ituri.
By Novemberthe fighting had killed seven thousand people and displaced one hundred thousand. Yet the charges against the accused only concerned the enlistment and conscription as soldiers of children under the age of fifteen, which is considered a war crime. Acts of violence perpetrated against civilian populations murders, looting, rape, forced displacement were not included in the charges. Why did the OTP choose the sole charge of enlisting child soldiers? What is the rationale behind this decision, and on what basis was the indictment drafted?
To understand the constraints that shape a judicial investigation into war crimes, we must first look briefly at the statutes of the ICC and the its internal organisation. Unlike the International Criminal Tribunal for the former Yugoslavia ICTY and the International Criminal Tribunal for Rwanda, which were established by UN Security Council resolutions in andrespectively, with a limited mandate in space and time, the ICC is a permanent criminal court established by the Rome Statute, an international treaty that entered into force in July The ICC's jurisdiction extends only to events occurring after the statute entered into force.
It tries individuals, not states or groups. In organisational terms, the ICC is composed of four separate organs: the presidency with its three elected judges: the president and two vice-presidentsthe judicial divisions composed of the Pre-Trial, Trial and Appeals Chambers and eighteen judges elected by an absolute majority of the Assembly of States Partiesan administrative body the Registry, which is in charge of administration and services to the ICC and finally an investigation and prosecution body the OTP.
The prosecutor is elected for a nine-year term, renewable once. Gambia's Fatou Bensouda succeeded him in An investigation begins with crime scene specialists being sent to the area under various cooperation agreements. This information has no value as evidence, however, and the judicial investigation must corroborate it. To start with, their work consists in identifying crime scenes, exhuming bodies, determining whether they are those of civilians or combatants and interviewing eyewitnesses or direct victims of the violence.
Based on this first set of clues and testimonial, forensic and documentary evidence, the investigators gradually piece together an initial judicial narrative. If the judges approve the indictment, then a warrant for the arrest of the alleged perpetrators is issued, publicly or under seal. They are given the opportunity to plead guilty or not guilty to the charges against them. The suspect then appoints a lawyer. The prosecutor is required to send the indictment and evidence to the defence, which conducts its own investigation and presents its own evidence.
If one or more charge is confirmed, then the case is referred to a Trial Chamber, which is responsible for conducting the next phase of the proceedings: the trial. The trial proceedings follow the adversarial system. Each party produces and examines its own witnesses, who are then cross-examined by the other party, on the same day or over several days.
This moment is often described as an ordeal for witnesses, particularly during cross-examination. Parts of their testimony are redacted to protect their identity. The proceedings are public, with interpretation into English, French and the vernacular languages of the witnesses and the accused. Visitors observe the trial from a public gallery next to the courtroom.
The judge's role during the proceedings is to arbitrate between the two parties. The judge is assisted by two associate judges and the Chamber's legal assistants. The judge rules on the admissibility of the testimonial and documentary evidence during the judgement-drafting phase, resulting in a judgement of six hundred s or more. The verdict and sentence are pronounced in public, in the presence of the accused.
Both parties are entitled to appeal the decision of the Trial Chamber. The Appeals Chamber may, in turn, reverse or amend the conviction, or order a retrial before a different Trial Chamber. Given these conditions, trials can last two to five years, if not more. In doing so, it became the second State Party after neighbouring Uganda to bring a case before the ICC concerning alleged war crimes committed on its own territory. After a preliminary analysis, Prosecutor Moreno Ocampo decided to open an investigation on 21 June Bernard Lavigne, a magistrate and former officer of the French police judiciairewas ased to head up the investigation.
In NovemberLavigne was called to testify before the ICC at the request of the Trial Chamber, to clarify for the judges the conditions under which the OTP's investigation had taken place. This request was prompted by a series of incidents that had occurred since the beginning of the trial, to which I will return in the last part of this article.
Under direct examination by the prosecution and cross-examination by the defence, Lavigne went back in detail over the various stages of the investigation. Plunged into unknown territory, he was confronted with a distant region, a different culture and languages he didn't speak, with a mission to investigate a conflict in which the alliances between the groups he met were far from straightforward. His unfamiliarity with the field was compounded by his unfamiliarity with his new employer. Many passages in his testimony describe the difficulty he had adapting to the practices of a common-law-inspired institution, so far removed from the civil law he was familiar with.
He had to deal not only with local actors in Ituri but also with colleagues from different nationalities and legal cultures. Lavigne's first challenge was the need to form a team. It is important to remember that this was the very first investigation conducted by the OTP, which, in the early years of its existence, essentially proceeded by trial and error.
Everything was being tested, from relations between headquarters and the field to prosecution and investigation policies. He was in favour of recruiting people with investigative expertise, such as military police, while Prosecutor Moreno Ocampo leaned instead toward candidates with different, more varied backgrounds, including from humanitarian and human rights organisations.
Each province in eastern Congo was looked at to identify crime scenes. As the investigation progressed, the information gathered from NGO reports gradually narrowed in on certain militias active in the region. NGO reports mentioned all kinds of violence, killings and looting perpetrated by these militias. The more information was compiled and expanded, the more the investigators hesitated over the type of crimes they should focus on. Should they investigate a particular militia and incident or adopt a more cross-cutting approach, targeting several militias and incidents at once?
Or should they investigate a specific phenomenon such as the recruitment of child soldiers? The decision to focus on the recruitment of child soldiers was based on information from UN officials and certain NGOs that stressed the massive scale of the problem. It was Moreno Ocampo who made it — not without eliciting some strong reactions from the investigators on the ground in Ituri. Lavigne made it clear that he did not always agree with the overall strategy pursued by Moreno Ocampo, who was more favourable to collaboration with NGOs.
In SeptemberLavigne and his team arrived in Bunia, the capital of Ituri. Media coverage of the team's presence in the area meant that throughout the period in question, they worked under local and international pressure. As in the initial information-gathering phase, witnesses too were threatened or ostracised by their communities for their cooperation with the ICC. The atmosphere of insecurity had a ificant impact on the conditions for gathering evidence and contact with witnesses. Because of the ongoing tensions in the area, the investigators struggled to make it to some villages.
The OTP subsequently made a choice that would prove decisive for the rest of the case. In the summer ofthe OTP decided to use intermediaries which is the official termwho can be classified into two. The second category, which provoked the most debate during the trial, was made up of individuals who could help the investigators meet witnesses.
Known to both the villagers and MONUC, their presence surprised no one, and they could go about their business in full view. The investigators called on four such intermediaries, but, Lavigne stressed, their activities were strictly supervised. They had no part in decision-making or the preliminary interviews with witnesses.
So as not to expose them to danger, they were given very little information on the substance of the case. Their role was seen primarily as providing support to the investigation. Initially, they worked on a voluntary basis. Once the first witnesses had been found through the intermediaries, their age had to be determined, as only the recruitment of children under fifteen years old counts as a war crime. A degree of tension arose within the OTP team. While the investigators in Congo asked for a scientific expert to be appointed immediately so they could get an approximate idea at least of the children's ages, the Executive Committee did not consider such verification necessary.
This antagonism between headquarters and the field can be construed as a reflection of differences in legal cultures. As a former youth court judge, Lavigne had had to have bone age tests carried out to determine the age of unaccompanied foreign minors in France. Moreno Ocampo had been a prosecutor in Argentina before being appointed prosecutor general of the ICC.
He was well known for his role as assistant prosecutor in the Trial of the Juntas, the landmark trial against the military commanders of the dictatorship in Argentina. In that case, in the absence of the bodies of the victims of the dictatorship, he had managed to convict five high-ranking officers based on mainly testimonial evidence.
Given this experience, Moreno Ocampo tended to favour that type of evidence over scientific and material evidence. The forensic expert who was appointed to this post in October — another Frenchman — had served five years in the same position at the International Criminal Tribunal for the former Yugoslavia.
Like Lavigne, he had had to perform numerous bone age tests while working as a forensic physician in France. These warnings long went unheeded. The equipment used was old, and even put the witnesses at risk of radiation. The OTP took no steps to make up for the lack of scientific evidence. They did not consult school records, interview the community leaders or contact the families. When civil status documents were requested, it was not the investigators but their intermediaries who went to collect them from the administrative offices.
On rare occasions, voter registration cards were used to determine age. We can clearly see the various difficulties the team came up against while conducting the first-ever judicial investigation for the enlistment of child soldiers in a difficult-to-access territory hostile to any foreign presence.
The investigators had to deal with a relentless series of constraints and unforeseen circumstances in an insecure context. Despite its hesitant if not makeshift nature, the investigation resulted in an arrest warrant being issued for Thomas Lubanga in Februaryhis arrest by the Congolese authorities and his transfer to the ICC's detention centre in The Hague in March But the choice to conduct the investigation based on NGO reports without corroborating them with scientific and material evidence had serious consequences.Looking for a solider
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