At the time of the commission of the crimes, Lubanga was the founding leader of the Union des Patriotes Congolais (UPC) and the commander-in-chief of its military wing, the Forces patriotiques pour la libération du Congo. The militia under Lubanga’s control, composed mainly of the Hema ethnic group, was suspected of committing grave abuses against civilians in the course of the conflict over land and resources in Ituri against militias of the Lendu eithnic group in the Ituri region of eastern DRC from 2002-3. After Lubanga’s arrest and transfer to the ICC in 2006, his deputy Bosco Ntaganda, and fellow ICC suspect, took over as UPC commander.
Thomas Lubanga Dyilo
ICC first landmark trial
As the first before ICC, the Lubanga trial was a landmark achievement for the Rome Statute system of international justice. The trial did much to highlight the problem of child soldiers and the need to protect children in conflict. The eventual guilty verdict and sentencing sent out a strong message that perpetrators of such crimes could, and would, be held to account.
Thomas Lubanga was accused as a co-perpetrator of the war crime of enlisting and conscripting children under the age of 15 years and using them to participate actively in hostilities. An ICC arrest warrant was issued for Lubanga on 10 February 2006, and he was arrested and transferred to The Hague on 16 March 2006. The charges were confirmed by Pre-Trial Chamber I on 29 January 2007.
Lubanga was convicted of the war crime of enlisting and using children under 15 to participate actively in hostilities on 14 March 2012. During the proceedings, ten former child soldiers testified, as did a number of expert witnesses.
ICC judges found that during the conflict, the FPLC implemented a widespread youth recruitment policy – including children under the age of 15. Following training in military camps, the youths were deployed as soldiers in Bunia, Tchomia, Kasenvi, and Bogoro, and participated in fighting in areas including Kobu, Songolo, and Mongbwalu. Children were also used as military guards and for a special “Kadogo Unit” comprised primarily of children.
The judgment was confirmed by a majority of the Appeals Chamber in December 2014.
Lubanga was sentenced to 14 years’ imprisonment on 10 July 2012. Judges determined that mitigating factors, including Lubanga’s cooperation, combined with a lack of aggravating factors meant that the maximum 30-year sentence requested by the prosecution would be inappropriate. Judges further decided that the six years Lubanga had already served in detention in The Hague since March 2006 would be deducted from the sentence. In December 2015, the Appeals Chamber declined to reduce Lubanga’s sentence any further.
Several challenges emerged in the course of the trial, some of which were attributed to the ICC being a fledgling court while others were considered avoidable. To minimize the reoccurrence of such challenges, civil society has been working with the ICC to translate these lessons-learned into a new standard of best practices and strategies.
Judges criticize the prosecution’s use of ‘intermediaries’
In their judgement decision, the Chamber also found that the Office of the Prosecutor (OTP) should not have delegated its investigative responsibilities to intermediaries—people who facilitated contact or provided a link between the OTP and witnesses in the case—a circumstance which had led to some evidence being unreliable. Related legal challenges contributed to delays in the proceedings.
Length of proceedings and rights of the accused
The length of ICC proceedings has been criticized due to its impact on the rights of the accused as well as costs. The Lubanga case spanned six years from arrest to conviction, largely due to two successive suspensions of proceedings. In the first instance (July 2008), the prosecution had not made potentially exculpatory evidence available to the defense. In the second instance (July 2010), judges cited the impossibility of a fair trial given that the OTP had failed to disclose to the defense the identity of an intermediary as ordered. The Appeals Chamber reversed both suspensions in October 2010, reasoning that less drastic measures such as sanctions should have been taken.
Narrow charges draw criticism; sexual violence omitted
The narrow scope of charges brought against Lubanga also proved controversial, which some observers said did not represent the full nature of the crimes allegedly committed by Lubanga and his troops. Many questioned the omission of charges related to sexual and gender based crimes. An attempt by Women’s Initiatives for Gender Justice—a member of the Coalition Steering Committee—to have the charges amended to include these crimes was rejected by the judges. The Appeals Chamber also reversed a Trial Chamber decision to modify the legal characterization of the facts to include inhuman treatment and sexual slavery.
The Lubanga case served as a first test of the ICC’s victims’ participation and representation system. 129 victims participated in the proceedings through a legal representative, and the guilty verdict triggered the Court’s reparations mandate for the first time. The implementation of Court-ordered reparations is pending and, with Lubanga having been found indigent, will be implemented by the ICC Trust Fund for Victims.