The Prosecutor v. Thomas Lubanga Dyilo

Court	International Criminal Court (Trial Chamber I), The Netherlands
Case number	ICC-01/04-01/06
Decision title	Judgment pursuant to Article 74 of the Statute (Public)
Decision date	14 March 2012
Parties	The Prosecutor Thomas Lubanga Dyilo
Categories	War crimes
Keywords	child soldier, children, conscription, Non-international armed conflict, war crimes
Links	Judgment pursuant to Article 74 of the Statute (Public)

Summary

The armed conflict in the Democratic Republic of the Congo opposed numerous tribes of different ethnicities in their struggle to gain power and territory, particularly over the Ituri provence in the north-eastern part of the DRC, an area rich in natural resources such as gold and diamonds. One such group, the Union Patriotique des Congolais, was established in 2000 and appointed as its chairman, the Accused, Thomas Lubanga Dyilo. He was also the commander in chief of the armed wing of the UPC, the Front Patriotique pour la Libération du Congo. This armed group was well-known for its use of young children to participate in the hostilities, from fighting, to cooking, cleaning, spying, and being used as sexual slaves.

Trial Chamber I, in the International Criminal Court’s first verdict, convicted Thomas Lubanga of the offense of conscripting, enlisting or using children to actively participate in hostilities. In defining active participation, the Chamber adopted a broad definition so as to include children involved even indirectly, so long as their contribution placed them in real danger as a potential target. Unfortunately, the Chamber did not discuss whether sexual violence against these children also fell within the scope of the offense.

Procedural history

In March 2004, the President of the Democratic Republic of the Congo (DRC) referred the situation in the State to the Prosecutor of the ICC.

On 10 February 2006, Pre-Trial Chamber I issued an arrest warrant for Lubanga for committing, as co-perpetrator, the war crime of enlisting and conscripting children under the age of 15 and using them to participate in hostilities as members of the armed group, the Force Patriotique pour la Libération du Congo.

On 16 March 2006, Lubanga was transferred to the ICC. The charges against him were confirmed on 29 January 2007 and the trial commenced on 26 January 2009.

Trial Chamber I delivered its verdict on 14 March 2012.

Related developments

Lubanga was detained at the ICC Detention Centre in the Hague whilst awaiting sentencing.

The Prosecutor of the ICC sought a 30-year sentence, reduced to 20 years in the event that Lubanga was able to offer a sincere apology. See also ‘ICC Prosecutor’s Address on the Sentencing of Thomas Lubanga’, Press Release, Office of the Prosecutor, 13 June 2012; and ‘ICC seeks 30-year sentence for Congo warlord Lubanga’, BBC News, 13 June 2012.

Trial Chamber I delivered its verdict on sentencing on 10 July 2012, sentencing Lubanga to 14 years’ imprisonment with credit for the 6 years already served whilst in detention at the Hague.

Legally relevant facts

In May 1997, President Kabila came to power in Zaire and renamed the state the Democratic Republic of the Congo (DRC). By the time of his assassination in 2001, at least ten conflicts ravaged the territory, with the majority taking place either in Ituri or in the district in which it is located (para. 70).

The conflicts in Ituri were initially economically motivated as the area is rich in resources (para. 71) until they progressed to ethnic hostilities between the principal tribes of the region, the Hemas and the Lendus (para. 74). Hema’s were favoured by Belgium during its colonisation of the area, and remained the landowning and business elite (para. 74). Following an attempt by Hemas to evict Lendu inhabitants from their land, armed confrontation broke out. The Hemas received the support of the Ugandan army (UPDF), whilst the Lendus formed their own militias (para. 75).

The Union Patriotique du Congolais was created in 2000, with Lubanga as its President (para. 81). He remained commander in chief of its armed wing, the Front Patriotique pour la Libération du Congo (FPLC).

Lubanga is alleged to have conscripted, enlisted and used children under the age of 15 in the context of these hostilities (para. 91).

Core legal questions

Considering that the distinction between conscription and enlistment is whether the act was committed with compulsion, can a child consent to enlistment?
Is there a distinction between ‘active participation’ in hostilities as an element of the offense of using child soldiers and ‘direct participation’ in hostilities under international humanitarian law?
Does sexual violence against children fall within the scope of active participation?

Specific legal rules and provisions

Articles 8(2)(b)(xxvi), (e)(vii) and 25(3)(a) of the Statute of the International Criminal Court.

Court's holding and analysis

Although conscripting, enlisting and using child soldiers are separate offenses under the Statute (para. 609), in the circumstances of the present case conscription and enlistment are dealt with together. The offense is committed at the moment a child under 15 joins an armed group, with or without compulsion (para. 618). Consent is not a valid defence but the manner in which the child was recruited – whether voluntarily or with compulsion – may be taken into account at sentencing (para. 617).

Active participation is a broader term that includes a greater number of activities than the notion of direct participation in international humanitarian law (para. 627). Active participation includes direct and indirect participation; the decisive factor is whether the support provided by the child exposed him/her to real danger as a potential target. Whether a particular activity constitutes active participation is to be decided on a case-by-case basis (para. 628).

The majority refused to consider whether sexual violence against children can be included in the scope of using children to actively participate in hostilities due to the failure of the Prosecution to include it in the charges against the Accused and the Trial and Appeals Chamber’s decisions not to change the legal characterisation of the facts to include crimes associated with sexual violence (para. 630). Judge Odio Benito dissented (paras. 16-20, Separate and Dissenting Opinion)

Further analysis

K. Ambos, ‘The First Judgment of the International Criminal Court (Prosecutor v. Lubanga): A Comprehensive Analysis of Legal Issues’, International Criminal Law Review, 2012, Vol. 12, pp. 115 et seq.;
N. Hayes, ‘Sisyphus West: Prosecuting Sexual Violence at the International Criminal Court’ in N. Hayes, Y. McDermott and W. Schabas (Eds.), Ashgate Research Companion to International Criminal Law: Critical Perspectives, 2012.

Instruments cited

Rome Statute of the International Criminal Court, United Nations Diplomatic Conference of Plenipotentiaries on the Establishment of an International Criminal Court, 17 July 1998.
Elements of Crimes, Official Records of the Assembly of States Parties to the Rome Statute of the International Criminal Court, First session, New York, 3-10 September 2002.