Lubanga Trial at the International Criminal Court (ICC)

Thomas Lubanga Dyilo is a Congolese rebel militia leader accused of conscripting child soldiers to further the conflict in the Democratic Republic of Congo (DRC) during 2002 and 2003. If proven, this constitutes a war crime, one of the most serious international crimes.

In the DRC, Lubanga was allegedly the president of the Union of Congolese Patriots from 2000, and from 2002 was alleged to have served as commander-in-chief of its former military wing, the Patriotic Forces for the Liberation of Congo. The Union of Congolese Patriots’ goal was to establish dominance of the Hema ethnic group through violence against non-Hema people—especially Lendu militias and civilians.

Because he was suspected of committing war crimes during the conflict, Lubanga was arrested in March 2005 and transferred from the DRC to the ICC a year later, in March 2006. After long delays, his trial started at the ICC on January 26, 2009.

Following the 1994 genocide in neighboring Rwanda, Rwandan Hutu fighters who had participated in the 1994 slaughter of Tutsis fled to eastern Zaire (now the DRC), and some of these fighters went to refugee camps. From eastern Zaire, these Hutu fighters launched attacks on Rwanda and received support from Zaire’s president, Mobutu Sese Seko.

In 1996, troops from Rwanda and Uganda entered eastern Zaire and made Laurent Kabila the head of their allied Congolese rebels. These troops swept across the vast country, killing not only Hutu fighters, but also 200,000-300,000 Hutu civilians as they went.  In May 1997, the Rwandan and Ugandan forces and Kabila’s rebels defeated Mobutu’s forces and allied Angolan rebels. This put an end to Mobutu’s 32-year dictatorship.  Laurent Kabila made himself president and changed the country’s name from Zaire to the Democratic Republic of Congo.

Wanting to prove his independence, in 1998 Kabila turned against the Rwandans who had helped him get to power.  Rwanda immediately tried to remove Kabila, but Angola’s military beat back Rwandan troops in the capital, Kinshasa. Zimbabwe and Namibia joined the side of Kabila, while Rwanda was joined by Uganda and Burundi in opposing Kabila. Congolese Tutsis, called Banyamulenge, allied with Rwanda and its troops. Uganda backed different militias. Anti-Tutsi Congolese militias called Mayi-Mayi received the support of Kabila.

The conflict, which was most intense in the east of the DRC, became known as Africa’s First World War. In addition to ethnic divisions, the conflict was complicated by the DRC’s rich natural resources. The combatant forces sought to control land and exploit mineral wealth and timber. Conflict over the diamond center of Kisangani caused allied troops from Rwanda and Uganda to fight against each other. During the conflict, many fighting factions divided and formed complicated rivalries. Without any accountability, many atrocities were committed against civilians on all sides, including many killings and horrific levels of sexual violence. By 2004, around four million people had died as a result of the conflict, through disease, starvation, and directly through killings.

In 2000, the United Nations began a peacekeeping mission in the DRC. However, fighting continued. Laurent Kabila was assassinated in 2001, and his son Joseph Kabila became president. Peace negotiations advanced, and in April 2003 all neighboring countries agreed to withdraw their forces from the DRC. Congolese rebel representatives from many factions joined a government led by Joseph Kabila. With more international peacekeepers in the DRC, parliamentary and presidential elections were held in 2006. Joseph Kabila defeated Jean-Pierre Bemba  in the final round of presidential voting and stayed as president.  Bemba’s supporters clashed with government troops in Kinshasa before peacekeepers could end the violence.

Throughout the course of this extended conflict, pre-existing tensions between Lendu and Hema peoples became much more deadly. As the Lendu began to identify more with the Hutu, and the Hema more with the Tutsi, the wider war became linked to, and helped fuel, the Lendu-Hema regional conflict in the east.

Early in the DRC war, Uganda backed a Congolese militia that contained both Hema and Lendu. However, this militia split along ethnic lines and Lendu began to see Uganda as supporters of Hema. Six different militias ended up fighting over Ituri province, and Uganda remained deeply involved.  Ituri is rich in minerals, especially gold, and the militias, along with the Ugandan army, fought to control the mining. The conflict made commanders rich and gave them a reason to keep fighting. They rallied their forces and people with ethnic hatred in order to continue the profitable war. There were horrific massacres of civilians in 2002.

French peacekeepers intervened in 2003 and UN peacekeepers increased their numbers in Ituri beginning in 2004. The UN mission arrested several militia leaders in March 2005, including Hema militia leader Thomas Lubanga.  The ICC has since issued an arrest warrant for one other Hema commander, Bosco Ntaganda, who remains at large. It has brought charges against two Lendu militia commanders, Germain Katanga and Mathieu Ngudjolo Chui.

Violence in Ituri has continued, most recently in late 2008. That conflict is believed to have caused at least 50,000 deaths and displaced hundreds of thousands of civilians.

• conscripting children under the age of 15 years into armed groups;
• enlisting children into armed groups, and
• using children to participate actively in armed conflict.

Lubanga is charged with responsibility for these crimes because of his alleged position leading both the political group the Union of Congolese Patriots and its former military wing, the Patriotic Forces for the Liberation of Congo. The prosecutor charges that Lubanga exercised power and authority over these organizations, including the adoption and implementation of their policies (among which were the conscription, enlistment, and use of child soldiers).

While wars are chaotic and brutal, there is a body of international law that tries to regulate the violence in armed conflict. Those laws aims to safeguard "protected persons"—those who are not, or are no longer, involved in the conflict. Protected persons include civilians (children and women are considered particularly vulnerable), ill soldiers, and prisoners of war. These persons must be shielded from crimes including killings, torture, rape, and other sexual violence. One of these crimes is the conscription of soldiers younger than 15 years old into combat forces.

The International Criminal Court is responsible for investigating, prosecuting, and trying persons accused of committing war crimes (as well as crimes against humanity and  genocide).  War crimes are defined in the ICC’s founding document, the Rome Statute.

Adults have a responsibility to care for children and protect them from harm, not to put them in harm’s way by using them to fight in a war. When commanders use children in conflict, they create a generation trained in violence that tears at the fabric of society. Children who are enlisted and recruited for combat, even the ones who themselves commit crimes, are considered to be victims. An estimated 300,000 children are used as child soldiers around the globe in at least 14 countries.

The International Criminal Court is the world’s first permanent court responsible for prosecuting some of the most serious crimes known to humankind, such as genocide, crimes against humanity, and war crimes. One of the conditions for setting up the ICC was to create a fair system of justice at the international level that operates according to the rule of law, not according to the whims of politicians, the wealthy, or others who wield power.

The ICC was created by a group of 120 countries in July 1998 in Rome, Italy.  The court officially started work on July 1, 2002, and is located in The Hague, Netherlands.  Although it is based in Europe, 30 of the 106 countries who have ratified the ICC’s founding document (which binds them to the ICC’s rules) are from Africa, and ICC staff and judges come from all around the world, including Africa.

Originally scheduled to start on March 31, 2008, the Lubanga trial was delayed until June 23, 2008. However, in early June, the judges suspended the trial out of concern that Lubanga could not get access to potentially exculpatory information in the control of the ICC prosecutor, Luis Moreno Ocampo. The judges were concerned that Lubanga would not get a fair trial unless the prosecutor fixed the problem.

On July 2, 2008, the Trial Chamber decided that the prosecutor had not done enough to fix the problem and that Lubanga should be released. He was kept in jail, however, because that Trial Chamber decision had been challenged. A series of decisions followed, and in November 2008, the judges decided that the problem had been fixed and the trial could go ahead.  The start date is January 26, 2009.

People who want to be recognized as victims during any stage of Lubanga’s trial can apply to participate in the trial and ask the judges to determine whether they fit the criteria to be counted as a victim in the case.  If victims are recognized by the judges, they are entitled to a lawyer, who can make their views heard in the courtroom. They can send information to the prosecutor. Victims can also apply to the court administration for reparations from individuals who have been found guilty. A trust fund for victims, using donated funds, can additionally provide support to victims.

If the judges reject a person’s application to be recognized as a victim, it is not because they do not believe that the person is a victim of the war. They simply have rules which mean that only those who can prove their injuries or loss are closely related to the issues at Lubanga’s trial can count as a recognized victim in the process. The judges understand that many more people were victims of crimes in the DRC than can possibly be represented by lawyers in the ICC cases.

Witnesses are in a different position. They are people who are called to testify by either the prosecution or defense to try to prove its case. Some of these people are victims themselves, others may have been colleagues of Lubanga and can testify to the structure of his militia and his ability to control it. Other witnesses are people who can link certain events and crimes to Lubanga.  Still others may not even be from the DRC but instead are experts on particular issues such as the history of the DRC conflict.

People from the DRC who testify may suffer threats to their safety before or after they testify.  When witness security is a concern, the ICC will try to provide special measures to protect their identity and ensure their safety, consistent with the rights of the defense to a fair trial.

A basic human right for every person charged with a criminal offense is to be "entitled to a fair and public hearing by a competent, independent, and impartial tribunal established by law" and to be presumed innocent until proven guilty. Lubanga is presumed innocent throughout the whole legal process, unless and until the ICC judges find him guilty at the end of the trial.

The judges will decide whether the prosecutor has proved Lubanga’s guilt for the crimes which he is alleged to have committed. If they find him guilty, the court can sentence him to a length of time in prison and/or order his property taken so that reparations are paid to victims. Lubanga will not receive the death penalty if he is found guilty; that is prohibited under ICC rules. If he is found not guilty, he will go free and will retain the presumption of innocence.

To date, the ICC has secured custody of two other Congolese men in relation to the DRC investigation, and a third remains at large. The two in custody are Lendu militia leaders (opposed to Lubanga’s Hema militia) Germain Katanga and Mathieu Ngudjolo Chui. Legal proceedings have already started against Katanga and Ngudjolo, and their joint trial is expected to start later in 2009. A third Congolese national, Bosco Ntaganda, is accused of committing war crimes as a senior commander of Lubanga’s group, but he has not yet been arrested.

The investigation in the DRC is continuing. In November 2008, the prosecutor publicly announced that he had started a third investigation in the DRC, focusing on the Kivu region. He also indicated that he plans to investigate those who allegedly "organized and financed militias active in the DRC." It is unclear yet whether more people will be charged. That will depend on whether the ICC prosecutor finds enough evidence of crimes committed by specific people.

Military courts in the DRC have tried cases of war crimes.  For example, in March 2006, a military court in Bukavu convicted a commander of the DRC army for the arrest and detention of children.  In April 2006, seven military officers were convicted of mass rape as a crime against humanity. In February 2007, a military court in Bunia, using the provisions of the Rome Statute, convicted 13 soldiers of a massacre of civilians in Ituri.

Local and international human rights organizations say that these trials and others have been difficult because officials involved in the trials need more training and resources, and there has sometimes been political interference and corruption. The UN peacekeeping mission in the DRC and nongovernmental organizations are working to provide training and resources for the military courts, and are monitoring the fairness of the trials.

Legislation is stuck in the DRC parliament that would allow civilian courts to hear war crimes cases. The legislation would formally adopt guidelines of the Rome Statute for domestic trials. Critics of the legislation complain that it would put an end to the death penalty in the DRC.  Local human rights organizations say that the bill has not been passed because some officials fear prosecution themselves.

Thomas Lubanga is charged with using child soldiers in hostilities.  The charges state that most of these children were boys, but that girls were also included. Some Congolese and international human rights organizations have noted that the girls who were enlisted and recruited by Lubanga’s forces were also victims of sexual abuse, but the charges against Lubanga do not include sexual violence. It is not clear whether Lubanga will have to answer for the particular suffering that girls endured as a result of becoming child soldiers.

The number of children involved in fighting forces in the DRC conflict is enormous—the United Nations estimates it to be 30,000 children. Trying to hold one person accountable for the crime of using child soldiers will not, by itself, stop children being recruited to fight.  It has to be seen as one effort, among many, to try to halt the practice.

Bringing individuals such as Lubanga to trial for his alleged actions may help deter others from committing similar crimes. It is also a way to start restoring respect for the law—which prohibits the use of child soldiers—after war has undermined and destroyed the rule of law through chaos, violence, and lack of accountability for suspected criminals.

Some Congolese and international organizations have criticized the ICC prosecutor for limiting the charges against Thomas Lubanga to enlistment, recruitment, and use of child soldiers.  They argue that Lubanga’s forces also engaged in other serious war crimes, including murder and sexual violence. For some, these limits have been disappointing, as has the fact that the man accused of committing crimes as Lubanga’s deputy, Bosco Ntaganda, has similarly been charged only with enlisting, conscripting, and using child soldiers in armed conflict. Ntaganda has not yet been arrested.

In response to the criticisms, the ICC prosecutor has argued that the use of child soldiers not only fuels armed conflict; it also turns children into killers and breaks down the fabric of society—making it an extremely serious crime. As with any prosecution, there may be other issues relating to availability of evidence and provability of particular charges that may be relevant. But it is clear that the ICC would do well to speak with people in the DRC more regularly to explain this charging decision, and to help people understand why Lubanga has not been charged with other crimes—like murder—which may seem to be more serious to people who lived through the violence in the DRC.

It is not clear that the parents of children who died on the frontlines will receive any compensation.  The International Criminal Court has a reparations mechanism, but we don’t yet know how it will work and who, if anyone, will benefit from it.

If Thomas Lubanga is found guilty of the crimes for which he is accused, the court has the option of directly ordering reparations to certain victims, and victims will have an opportunity to file reparation claims with the court.  Families whose children were taken from them and made to join Lubanga’s forces could use this mechanism to apply for reparations. Even if the court ordered Lubanga to pay money to victims, however, we do not know if Lubanga will pay, or has the resources to pay anything.

The Rome Statute created the Trust Fund for Victims to advocate for and support victims in locations where the ICC has jurisdiction. The fund emphasizes that it does not provide charity, but rather supports victims, their families and communities through such initiatives as medical care and job training. Governments, international organizations, corporations, foundations and individuals can provide money for the activities of the fund.

So far, the trust fund does not have a lot of money, and the assistance it can give is limited.

The ICC has issued an arrest warrant for one person who is believed to have collaborated with Lubanga in committing crimes—one of his alleged deputies, Bosco Ntaganda. However the ICC does not have its own police force to arrest people who are suspected of committing crimes.  The ICC has to rely on states to arrest them. This is often difficult as states sometimes don’t have the resources to arrest people (particularly if their country is emerging from conflict), do not want to arrest certain people for political or other reasons, or have trouble finding the person if he has gone into hiding. It is important for the international community to help the ICC arrest its suspects, or to put pressure on states which do not want to arrest people wanted by the ICC.

The investigation in the DRC is continuing. We do not know if the ICC prosecutor will want to issue more arrest warrants for other Lubanga supporters. In deciding whom to bring charges against, the prosecutor must follow the ICC guidelines, which state that the focus should be on those who committed "the most serious crimes of concern to the international community as a whole." Not every person who commits a crime will be prosecuted.

• The right to a public hearing.
• Presumption of innocence until proven guilty.
• The defendant’s right to be informed of the nature and cause of the charges against him.
• The court must ensure that the trial is conducted without delay.
• The defendant is present during his trial.
• The defendant has the right to legal counsel, or to defend himself.
• Legal assistance for the defendant if he does not have sufficient funds to pay for it.
• The defense counsel has the right to examine or cross-examine witnesses.
• The defense counsel may present witnesses before the court.
• Court interpreters are available to translate witness testimonies if necessary.
• The defendant is not forced to testify against himself or to confess guilt.