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International Criminal Court: Landmark ICC Ruling Finds Congo Militia Leader Guilty

(Apr. 11, 2012) The International Criminal Court (ICC), established in July 2002, issued its first decision on March 14, 2012. In the landmark case, “The Prosecutor v. Thomas Lubanga Dyilo,” the three-judge panel comprising Trial Chamber I found military leader Lubanga guilty of war crimes in the Democratic Republic of Congo (DRC). (Dan Taglioli, Congo Militia Leader Found Guilty in Landmark First ICC Verdict, PAPER CHASE NEWSBURST (Mar. 14, 2012).)

Lubanga was convicted on one count “of the crimes of conscripting and enlisting children under the age of fifteen years into the FPLC [Force Patriotique pour la Liberation du Congo] and using them to participate actively in hostilities within the meaning of Articles 8(2)(e)(vii) and 25(3)(a) of the [Rome] Statute from early September 2002 to 13 August 2003.” (Situation in the Democratic Republic of the Congo in the Case of the Prosecutor v. Thomas Lubanga Dyil, ICC-01/04-01/06, ¶ 1358 [hereinafter Judgment].) Article 8(2)(e)(vii) of the Rome Statute is on child conscription as a war crime; article 25(3)(a) relates to individual criminal responsibility, be the crime committed as an individual, jointly with another person, or through another person. (Rome Statute of the International Criminal Court (July 17, 1998; in force on July 1, 2002).)

The DRC became a State Party to the Rome Statute, the treaty on the basis of which the ICC was founded, on April 11, 2002; pursuant to article 14, DRC President Joseph Kabila referred the situation in his country to the ICC prosecutor in March 2004. (Judgment, supra, ¶ 9, citing to the Decision Assigning the Situation in the Democratic Republic of Congo to Pre-Trial Chamber I, ICC-01/04-1 (July 5, 2004) (notified on July 6, 2004), at 4.)

The ICC proceedings began in February 2006, with the ICC's issuance of an arrest warrant for Lubanga, but they were suspended twice for reasons related to due process. In addition, during the pre-trial phase as well as at trial, the judges prohibited witness proofing, in a reversal of the procedural approach taken by other international tribunals, “a move which may have contributed to the first witness in the case to initially seek to retract his testimony on the stand.” (Alison Cole & Kelly Askin, Thomas Lubanga: War Crimes Conviction in the First Case at the International Criminal Court, 16:12 INSIGHTS (Mar. 27, 2012).)

The case involves events that occurred in Ituri, a district in Orientale Province in the DRC's northeastern region, bordering Uganda. Ethnic tensions and competition for resources there escalated into intense conflict beginning in 1999, between two of the many ethnic groups in Ituri, the Hema and the Lendu; from 1999 to mid-2003, there was a struggle for political power in Ituri among a series of opposing rebel faction leaders. (Judgment, supra, ¶¶ 67, 75, & 76.) According to the prosecution, Lubanga, said to be concurrently President of the Union of Congolese Patriots (UPC) and Commander-in-Chief of the FPLC (the military wing of the UPC), directed the UPC/FPLC conquest of Ituri during the period September 2002 to August 2003. (Id. ¶¶ 27-28.)

The Trial Chamber was “satisfied beyond reasonable doubt” that:

  • [as] a result of the implementation of the plan to build an army to gain political and military control over Ituri, “boys and girls under the age of 15 were conscripted and enlisted into the UPC/FPLC between 1 September 2002 and 13 August 2003,” and “that the UPC/FPLC used children under the age of 15 to participate actively in hostilities, including during battles.” The children “were also used, during the relevant period, as soldiers and as bodyguards for senior officials, including the accused” (id. ¶ 1355); and
  • based on the evidence of the various roles he played, Lubanga “acted with the intent and knowledge necessary to establish the charges (the mental element required by Article 30 [of the Rome Statute])”; “was aware of the factual circumstances that established the existence of the armed conflict”; and “was aware of the nexus between those circumstances and his own conduct, which resulted in the enlistment, conscription and use of children below the age of 15 to participate actively in hostilities” (id. ¶¶ 1356-1357).

The majority stated that it could not consider whether sexual violence may properly be included within the scope of “using [children under the age of 15] to participate actively in hostilities” as a matter of law, because the prosecutor did not present the relevant facts in the charges. However, the majority indicated it would consider whether such matters should be taken into account for purposes of sentencing and reparations. (Cole & Askin, supra; Judgment, supra, ¶¶ 630-631.)

The Trial Chamber found that a non-international armed conflict took place in the DRC at the time of the charges, amending the original legal characterization of the charges as pertaining to an international armed conflict. (Cole & Askin, supra.)

The case will move to the sentencing and reparations phase; submissions must be filed by April 18, 2012. The prosecution may seek a sentence “close to the maximum,” which is up to 30 years of imprisonment, based on article 77(1)(a) of the Rome Statute, with certain exceptions. (Id.) Lubanga has requested a separate sentencing hearing under the Statute's article 76(2); he has the right to appeal his conviction within 30 days. (Taglioli, supra.)