Today, Trial Chamber I of the International Criminal Court found Thomas Lubanga Dyilo guilty of the war crimes of conscripting and enlisting children under the age of 15 and using them to actively participate in military hostilities during the conflict in Ituri, Democratic Republic of the Congo.Mr. Lubanga was the President of the Union of Congolese Patriots (UPC) and the commander-in-chief of its military wing, the Forces Patriotiques pour la Libération du Congo (FPLC, Patriotic Liberation Forces of the Congo). He was found guilty as a co-perpetrator for conscripting, enlisting and using the child soldiers in furtherance of a common plan to gain and maintain political and military power in Ituri. A separate sentencing hearing will follow.Although Judges Bonito and Fulford have written separate and dissenting opinions on discrete issues, the decision on Mr. Lubanga’s guilt was unanimous. An appeal is likely.This is the first-ever judgment of the ICC and marks a historical moment. However, the trial, which has dragged on for six years since the time of Mr. Lubanga’s arrest and transfer to the court in 2006, has been marred in controversy that demonstrates the ICC’s growing pains. The proceedings raised many critical issues the ICC will be forced to deal with as it continues to mature, including disclosure obligations, the use of intermediaries by the Prosecution, and the participation of victims in the proceedings.
Condemning Prosecution’s Use of Intermediaries
During today’s reading of the judgment, the Trial Chamber made special note of the Prosecution’s use of intermediaries—third parties non-Court staff—to gather evidence for the trial (prior IntLawGrrls posts here and here). The Court considered that the OTP should not have delegated its investigative duties to the intermediaries, even considering the security concerns the OTP faced. The Court chastised the OTP for its “negligence” in failing to scrutinize and analyze the evidence gathered by the intermediaries. The court noted that because of the OTP’s lack of oversight, the intermediaries were able to take advantage of and manipulate witnesses who were former child soldiers, given their vulnerability due to their young age and traumatic experiences. The evidence of those witnesses could not safely be relied on, the Chamber concluded. The Chamber went so far as to suggest that the Prosecution charge three intermediaries for crimes against the administration of justice (Art. 70 of the Rome Statute) for persuading, encouraging and assisting witnesses to give false evidence. The Court told the OTP to ensure that there are no conflicts of interest in pursing such charges against the Prosecution’s own intermediaries.Although at some point the conflict in Ituri was international in character, the Court found that during the period of the conflict relevant to the charges (September 2002 – August 2003) the UPC FPLC was involved in an internal armed conflict. Therefore, the Chamber changed the legal characterization of the facts pursuant to Regulation 55.
Conscripting and Enlisting Child Soldiers
The Chamber concluded that enlisting and conscripting children under the age of 15 becomes a crime as of moment the child is enrolled into or joins armed groups—with or without compulsion. The crime is continuous in nature and ends when the child turns 15 or leaves the group, the Court found. Between September 2002 and August 13, 2003, the Chamber found that the armed wing of the UPC was responsible for the widespread recruitment of young people, including children under 15.
These children were voluntarily or forcibly recruited and sent to either UPC headquarters military training camps, the Court found. According to the Chamber, evidence demonstrated the children endured “harsh training regimes,” were subjected to a variety of harsh punishments, and were used to carry out domestic work. The Court also noted that while witnesses testified that UPC commanders subjected girls to sexual violence and rape, these crimes were not part of the charges against the accused, and the Chamber did not made any factual findings on the issue.
Using Children to Actively Participate in Hostilities
Using children to actively participate in hostilities is a charge that includes a wide-range of activities not limited to fighting on the front lines, the Court found. The Court considered that using children in indirect roles that support the combatants, such as domestic servants or bodyguards, was also active participation in hostilities if that role exposed the child to “real danger as a potential target.” The Court found that the UPC FPLC deployed children as soldiers that took part in fighting in Ituri. The UPC FPLC also used children as military guards and bodyguards, the Court found. In particular, the Court found that Mr. Lubanga’s presidential guard included children.
Mr. Lubanga Participated in a Common Plan
The Chamber found that Mr. Lubanga and his co-perpetrators agreed to, and participated in, a common plan to create an army to establish and maintain political and military control over Ituri. This resulted in the conscription and enlistment of children into the military and their use in hostilities. Mr. Lubanga himself actively participated in recruitment activities and provided logistical and material support to the UPC FPLC. Mr. Lubanga’s contribution to the common plan was significant, the Court found, and he acted with the requisite mens rea. Mr. Lubanga, as president of UPC FPLC, was simultaneously its political and military leader. He had an overall coordinating role of activities, was informed of its operations, involved in planning of military operations, and played critical role in providing logistical support including arms, food and other supplies. Moreover, the Court found that he was closely involved in making decisions on recruitment and actively participated in recruitment exercises by giving speeches encouraging youth to join the army. He personally used children below the age of 15 as bodyguards and regularly saw guards of other UPC staff members do the same. These contributions, taken together, were essential to a common plan that led to the commission of the crimes charged, the Court found.