Former Attorney-General of The Gambia Speaks on ICC

Trying One, Blaming Many

For the past two years, Fatou Bensouda, the deputy prosecutor at the International Criminal Court, has gathered grim evidence against warlord Thomas Lubanga Dyilo. The former head of the Union of Congolese Patriots in the eastern region of Congo, Dyilo is charged with enlisting and conscripting child soldiers.

In 2003, at the peak of the conflict, prosecutors allege, he had as many as 30,000 children under arms in his militia. Dyilo will be the first person tried before the new judicial body-based in The Hague-which was established to investigate war crimes, genocide, and crimes against humanity.

How do children find themselves toting guns?
Children join the armies because there are no better options. There are financial reasons, and sometimes they are fighting because they are forced to take sides-perhaps because of an atrocity committed against their family. They are given guns and initiated into the various armies. They might be required to kill a family member so as to alienate them psychologically from their families.

Both sexes?
Girls are enlisted in the army or used as sex slaves. They are made wives or given as rewards to commanders who are fighting these battles. These are the years where they should be in school-yet these children are taken forcibly away and forced to fight. It has a devastating effect on the child’s life. The child’s life has been destroyed, and society is left with the problem of rehabilitating them.

How many children are we talking about?
The estimates say at least 300,000 children worldwide. In some parts of the world, children are used in administration-to run errands and to spy. In other places, they are given guns and made to fight battles.

How does ICC procedure differ from criminal trials in the United States?
The ICC was established under the Rome Statutes in 2002, and that was when our jurisdiction began. We have pretrial chambers, trial chambers, and appeals chambers. In this case, Dyilo, the warrant is then transmitted to the Democratic Republic of Congo. He was in jail there at the time and transferred to the court in accordance with the treaty and the rules that have been established.

What’s the value of the precedent set here?
To get consensus that this is wrong; that enlisting and conscripting children is wrong. We need consensus that those who are doing it will be held accountable.

Are there defenders of child soldiering?
There is support for the rebel groups. The populations are aware of what they are doing. The only thing that I can conclude is that populations that support these groups also support these tactics.

Who is responsible?
[Dyilo] is the person who bears the greatest responsibility. This is an atrocity where the whole society has to be blamed. There are others who should make sure that the peace is negotiated and the conflict is brought to an end.... We have started with this case, but it is not the last.

Is it difficult to get willing witnesses?
People are willing to talk about these crimes. For some, it is a relief that someone will try to do something about it.

What do they tell you?
It’s not necessarily a component of this particular case, but sometimes a child is forced to kill a brother or another family member. They may be forced to set fire to the family house. These are the things that the army does to make sure that the child has the will to kill. Once you have killed a member of your family, what do you care who else you kill?

Do these societies want these crimes prosecuted, or do they want to bury the past?
In the Congo, for example, and in other countries, they are moving to codify these international standards in their legal code.

But is there a cultural willingness to expose and punish?
Part of the reason for this case is to raise this issue. The perpetrators of these crimes are coming to see the behavior as accepted and commonplace. That they can do it and get away with it.

What type of authority does the court have?
We are an institution that has no law enforcement body. We have no police force and no army. We rely on the member states and organizations like the U.N. to do our work—accessing evidence and collecting information. Getting access to the evidence is difficult because of the fact that the conflict is often ongoing. Security is a huge issue not just for the staff but for the victims as well.

Is there more pressure to get this case right because of the importance of legal precedence?
This is the first kind of case, and we have an added responsibility to make sure that the trial is conducted in a fair manner. He is presumed innocent. The verdict is not the most important part; it’s the fact.