Name: Thomas Lubanga Dyilo
Nationality: Democratic Republic of Congo
Arrested: March 2005
Handed over to the International Criminal Court: March 2006
Charged with: War crimes of conscripting, enlisting, and using child soldiers in the conflict in the Democratic Republic of Congo
Current Status: Standing trial at the International Criminal Court in The Hague, Netherlands.
Trial Start Date: January 26, 2008.
The trial of Congolese militia leader Thomas Lubanga Dyilo at the International Criminal Court (ICC) began January 26, 2008. He stands accused of war crimes; specifically, he is accused of conscripting, enlisting, and using child soldiers in the conflict in the Ituri region of the Democratic Republic of Congo (DRC). Despite intense interest in the ICC’s first-ever trial, many people are confused about the case. Questions range from why it has taken so long for the trial to start to whether Lubanga should have been set free.
The following overview looks at key events in Lubanga’s case to date, and why it has taken so long for his trial to start.
The International Criminal Court Investigation and Lubanga’s Arrest
ICC Prosecutor Luis Moreno Ocampo started his investigation into crimes in the DRC in June 2004. He issued a warrant for Lubanga’s arrest in January 2006 in connection with Lubanga’s alleged responsibility for the war crime of conscripting, enlisting, and using child soldiers under the age of 15 to further the war in the DRC’s Ituri district during 2002 and 2003.
Lubanga was arrested in March 2005 and transferred from the DRC to the ICC a year later, in March 2006. In January 2007, the ICC’s Pre-Trial Chamber I confirmed the charges against him, deciding enough evidence existed to justify a trial. Delays plagued the start of the trial, but it was eventually scheduled to begin on June 23, 2008.
Why the Trial Was Delayed
Ten days before the trial was supposed to start, the ICC’s Trial Chamber halted Lubanga’s trial because they were concerned his trial would not be fair. A fair trial requires that any person accused of a crime have access to "exculpatory information," or information that might help prove his innocence. The prosecutor is required to disclose any exculpatory information he has collected, so that the accused person can properly prepare his defense.
In Lubanga’s case, the prosecutor had not disclosed all the exculpatory information. He had kept to himself more than 200 documents—some of which contained potentially exculpatory evidence—which had been collected with the help of other organizations, including the United Nations and nongovernment organizations. He had not shared these documents because he had entered into confidentiality agreements with these organizations under a special provision in the ICC’s founding document, the Rome Statute (Article 54(3)(e)). This provision is intended to facilitate the prosecutor’s investigation by encouraging third parties to provide information for the purpose of generating new evidence—evidence that may not be disclosed absent the third party’s consent. This need for confidentiality was in part due to security concerns of these organizations, which feared for the safety of people who had given the information if their identities were revealed in documents handed to Lubanga’s defense lawyers.
However, the judges thought that the prosecutor had not correctly entered into those confidentiality agreements, which meant that at least some documents which should have been available to Lubanga were not even able to be examined by the judges who would determine whether they should in fact be given to Lubanga and his lawyers. The judges decided that the prosecutor’s inability to share the documents with the Trial Chamber and the judges’ resulting inability to work out whether and how that affected Lubanga’s rights, meant that "the trial process has been ruptured to such a degree that it is now impossible to piece together the constituent elements of a fair trial." The Trial Chamber decided to suspend the trial. On July 2, 2008, the judges further ruled that Lubanga should be set free because they thought there was no chance he could get a fair trial.
Why Lubanga Wasn’t Set Free
The prosecutor responded with two key efforts to keep the trial on track. One was to ask the Trial Chamber to lift the suspension of the trial, and the other was to ask the Appeals Chamber to ensure that Lubanga did not go free.
On September 3, 2008, Trial Chamber I rejected the prosecutor’s plea to lift the stay, because the judges decided that the problem affecting Lubanga’s fair trial rights still hadn’t been fixed. The prosecutor had not secured guarantees from the organizations with confidentiality agreements which would allow the judges to see all the relevant documents. Nor had he made sure that the judges would have access to the documents throughout the course of Lubanga’s trial, to make sure Lubanga’s fair trial rights were being protected. The partial fix that the prosecutor had proposed would still, according to the judges, "infringe fundamental aspects of the accused’s right to a fair trial."
Meanwhile, the prosecutor had swiftly appealed the July 2, 2008, decision by the Trial Chamber to set Lubanga free. This meant that Lubanga had to remain in jail while the appeal was being decided. On October 21, 2008, the Appeals Chamber decided to maintain the trial’s suspension, but to keep Lubanga in jail.
Why the Trial Could Proceed
Finally, on November 18, 2008, the judges agreed that the prosecutor had taken all the steps he needed to in order for Lubanga to get a fair trial. This also meant that any documents handed to the defense would be disclosed in a way that was mindful of the information providers’ safety. The judges lifted the stay to allow the trial to go ahead. The trial was then scheduled to start on January 26, 2009.
