On 14 March 2012, Trial Chamber I of the International Criminal Court (“ICC” or the “Court”) delivered its judgment in The Prosecutor v. Thomas Lubanga Dyilo (the “Judgment”). In so doing, the ICC found Thomas Lubanga Dyilo (“the accused”) guilty of the war crimes of conscripting and enlisting children under the age of 15 years old and using these children to participate actively in the hostilities of a non-international armed conflict. This decision represents the first-ever judgment produced by the Court since the Rome Statute entered into force on 1 July 2002, almost ten years ago.
The Democratic Republic of Congo (“DRC”) became a State party to the Rome Statute on 11 April 2002. In March 2004, President Kabila referred the situation in the DRC to the Prosecutor of the ICC. On 23 June 2004, ICC Prosecutor Luis Moreno-Ocampo announced that the Court would open its very first investigation into this situation. On 10 February 2006, a warrant of arrest for the accused was issued by Pre-Trial Chamber I and a month later, on 16 March 2006, the accused was transferred to The Hague to be held in custody. The opening of the trial began on 26 January 2009, with proceedings closed on 26 August 2011.
The Judgment concerns events which took place in the Ituri region of the DRC between September 2002 and August 2003 (the “relevant period”). Commencing in 1999, ethnic tensions had flared up in the region, predominantly amongst the Hema and the Lendu ethnic groups. Belgian colonial rule had favoured the Hema, who, post-independence, still largely remained the elite. In addition to ethnic tensions, the Ituri region is also rich in natural resources. Competition for these resources (such as gold, diamonds, timber and coltan) attracted the attention of groups both inside and outside the DRC, sparking a conflict. From 1999 to 2003, rival groups therefore fought for political power in Ituri.
Against this background, the Union des Patriotes Congolais (“UPC”) was formed on 15 September 2000. The accused was one of the UPC’s founding members and its President. The accused was also Commander-in-chief of the military wing of the UPC, Force Patriotique pour la Liberation du Congo (“FPLC”). The accused was alleged to have bolstered the military forces of the FPLC by enlisting children under the age of 15 years old.
Classification of the Conflict
Proving the existence of an armed conflict was essential in order for the charges of war crimes brought against the accused to succeed under Articles 8(2)(b)(xxvi) and 8(2)(e)(vii) of the Rome Statute. As a threshold question, the Court therefore had to determine whether the UPC/FPLC was involved in a non-international armed conflict (“NIAC”) or an international armed conflict (“IAC”).
Firstly, the Court held that during the relevant period in question, the evidence demonstrated beyond reasonable doubt that multiple armed conflicts were taking place simultaneously in Ituri and in other surrounding areas in the DRC. Secondly, there was also no reasonable doubt that the UPC/FPLC participated in protracted hostilities and was associated with an armed conflict throughout the relevant period. Thirdly, there was “ample evidence” that Rwanda had given support to the UPC/FPLC through, for example, the supply of weapons and uniforms. A former UPC/FPLC member testified that in around late 2002, he had visited Rwanda to receive heavy weapons training. Uganda had also offered the UPC/FPLC similar support. However, approving and adopting the test previously utilised by the International Criminal Tribunal for the Former Yugoslavia (“ICTY”), the Court held that there was insufficient evidence to show that either Rwanda or Uganda exercised “overall control” over the UPC/FPLC. Therefore, since the conflict involving the UPC/FPLC and other armed groups such as Rassemblement Congolais pour la Democratie – Kisangani/Mouvement de Liberation (“RCD-ML”) and its military wing, the Armee Populaire Congolaise (“APC”), did not involve two States, the appropriate classification of the conflict was a NIAC, notwithstanding any concurrent IAC taking place between Uganda and the DRC.
Use of Child Soldiers
In light of consistent witness testimony, the Court was convinced that during the relevant period, children under the age of 15 were recruited into the UPC/FPLC on an enforced as well as a voluntary basis. The Court found that the accused, as well as other leaders such as Bosco Ntaganda, were active in recruitment campaigns designed to persuade Hema families to let their children serve in the UPC/FPLC.
Meaning of “Active Participation” by Children in Hostilities
Article 8(2)(e)(vii) of the Rome Statute, applicable to NIACs, states that: “Conscripting or enlisting children under the age of fifteen years into armed forces or groups or using them to participate actively in hostilities” is a war crime. The ICC interpreted this phrase of active participation broadly. According to the Court:
“Those who participate actively in hostilities include a wide range of individuals, from those on the front line (who participate directly) through to the boys or girls who are involved in a myriad of roles that support the combatants… The decisive factor, therefore, in deciding if an “indirect” role is to be treated as active participation in hostilities is whether the support provided by the child to the combatants exposed him or her to real danger as a potential target. In the judgment of the Chamber these combined factors — the child’s support and this level of consequential risk — mean that although absent from the immediate scene of the hostilities, the individual was nonetheless actively involved in them… determination of whether a particular activity constitutes “active participation” can only be made on a case-by-case basis.”
In determining whether the accused was criminally responsible for the war crimes charged, the Court considered: (1) whether a common plan existed between the accused and his alleged co-perpetrators, and (2) whether the contribution of the accused amounted to an essential contribution. The Court answered both of these questions in the affirmative.
Firstly, the Court held that the accused had entered into an agreement, and thereafter participated in a common plan with his co-perpetrators, to try to build an army strong enough to secure political and military control in Ituri. An important component of that common plan was the conscription of children to participate actively in hostilities. Secondly, as both President of the UPC and Commander-in-chief of the FPLC, the accused was able to shape the policies of the UPC/FPLC and direct the activities of his alleged co-perpetrators. In those dual capacities, the accused was involved in the planning of military operations and in making decisions on recruitment policy. His contribution was, therefore, an essential one. In light of the above, it was, in the Court’s view, beyond reasonable doubt that the accused possessed the requisite intent and knowledge to be convicted of these war crimes.
The first judgment of the International Criminal Court is a welcome milestone, the impact of which extends far beyond the immediate interests of the accused and victims in the present case. As the first permanent institution established to enforce international criminal justice, the significance of its first conviction cannot be understated. That being said, one hopes that the Court can in future address at least three issues which have somewhat detracted from this historic occasion.
Firstly, the Judgment (including separate and dissenting opinions) extends to over 600 pages. Some commentators have questioned the necessity and utility of producing judgments of such length. Secondly, the ICC’s relationship with intermediaries must be reassessed. In the Judgment, the Court found that the evidence of a number of witnesses could not be safely relied upon due to the strong possibility that intermediaries had persuaded or encouraged witnesses to give false evidence. The third and perhaps most significant concern is the length of time taken for the Court to deliver this first conviction. Leaving aside the running costs of the trial and the Court itself (the programme budget for 2012 is approximately €109 million), as well as the considerable period of time for which the accused has already been detained prior to sentencing, the deterrence value of convictions obtained at this speed, against so few, may also be questioned.