International Justice Monitor

A project of the Open Society Justice Initiative

Background

Thomas Lubanga Portrait

© Michael Kooren / AFP / Getty Images

Name: Thomas Lubanga Dyilo
Nationality: Congolese
Arrested: Thomas Lubanga had been arrested in March 2005 and detained by Congolese authorities for another incident.
Handed over to the International Criminal Court: March 17, 2006
Charges: Three counts of war crimes, including conscripting, enlisting, and using child soldiers in the conflict in the Democratic Republic of the Congo between July 2002 and December 2003.
Trial start date: January 26, 2009
Trial end date: August 26, 2011
Judgment: March 14, 2012; convicted of all charges.
Sentencing: July 10, 2012; sentenced to 14 years in prison.

The trial of Congolese militia leader Thomas Lubanga Dyilo at the International Criminal Court (ICC) began January 26, 2009. On March 14, 2012 the judges convicted him of war crimes; specifically conscripting, enlisting, and using child soldiers in the conflict in the Ituri region of the Democratic Republic of the Congo (DRC). Despite intense interest in the ICC’s first-ever trial, many people are confused about the case. Questions range from why it took so long for the trial to start to whether Lubanga should have been set free.

The following overview looks at key events in the trial of Thomas Lubanga.

The International Criminal Court Investigation and Lubanga’s arrest

Former ICC Prosecutor Luis Moreno Ocampo started an 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.

The witnesses presented

The trial kicked off on January 26, 2009 and the prosecution rested their case on July 14, 2009. It had been expected at the time that the defense case would start by October 2009. But in May 2009, legal representatives of victims participating in the trial appealed to the court to re-characterize the charges against Mr. Lubanga to include charges of sexual slavery and cruel treatment.

The trial chamber agreed in July 2009 that a re-characterization could occur, although presiding judge Adrian Fulford dissented from the majority opinion. The appeals court subsequently overturned this ruling in December 2009, paving way for the opening of the defense case.

And so on January 27, 2010, one year and one day after the opening of the prosecution case, lead defense attorney Catherine Mabille presented the main lines of the defense case. She stated that Mr. Lubanga never recruited or used child soldiers, charged that prosecution witnesses were coached by intermediaries of the ICC’s prosecution investigators, and declared that after calling their first 16 witnesses the defense would ask for the case to be dropped on the basis of abuse of process.  Besides the 19 witnesses who have testified since the opening of its case, it will hear from one more witness and from the OTP investigator and the two intermediaries, and then ask judges to consider throwing out the case.

March 2010 saw the reappearance in the witness stand of a former prosecution witness who testified briefly last June but then had his testimony dramatically called to an end when he stated in court that the testimony he was due to give had been fabricated with the assistance of an intermediary of ICC prosecution investigators.

What the prosecution said

The prosecution contends that Mr. Lubanga was the overall leader of the UPC and FPLC; and that he visited and inspected FPLC military training camps, oversaw the conduct of military affairs and appointed the senior ranks within the FPLC, secured financing for the UPC/FPLC and negotiated the provision of their weapons and other military equipment.

It is also the contention of prosecutors that Mr. Lubanga personally took part in recruiting child soldiers, having them trained, and using them in armed conflict. As Prosecutor Moreno-Ocampo said at the start of the prosecution case, “The children were launched into battle zones where they were instructed to kill everyone regardless of whether their opponents were military or civilian, regardless of whether they were men, women, or children. They were forced to kill all [ethnic] Lendu because the Lendu were the enemy.”

Some of the prosecution witnesses said in open session that they often saw Mr. Lubanga at training camps, or that there were child soldiers in his compound. Nonetheless, a great number of witnesses who testified in public session did not link Mr. Lubanga directly to the military command of the militia. Instead, most of them identified Mr. Bosco Ntaganda and Mr. Floribert Kisembo as the men who were in charge of the military issues.

What the defense argued

Mr. Lubanga’s defense team has argued that none of the prosecution witnesses who presented themselves as former child soldiers in the UPC ever were. The defense also contends that the UPC did not have a recruitment policy for child soldiers. As for those children who volunteered to join the FPLC, said Ms. Mabille, defense witnesses will provide evidence to the effect that Mr. Lubanga “during the few months where he did have responsibilities, did all he could to demobilize the minors who were present amongst the ranks of the FPLC.”

However, prosecutors contend that the Rome Statute renders it irrelevant whether children joined “voluntarily,” or parents entrusted them “voluntarily” to UPC/FPLC. According to Deputy Prosecutor Fatou Bensouda, “accepting for military service so-called volunteers under the age of 15 constitutes criminal conduct”, which according to her would make Mr. Lubanga answerable even if the children voluntarily joined.

The defense has attempted to discredit testimony given by prosecution witnesses and participating victims that Mr. Lubanga was the commander of the UPC’s militia group, and that he took part in conscripting and using children under the age of 15 years. The defense says its witnesses will testify that during the time Mr. Lubanga had some control, he did all he could to demobilize child soldiers, in spite of the difficulties in implementing this policy of demobilization.

These lines of argument were repeated by Ms. Mabille when she opened the defense case on January 27, 2010. She stated: “In particular we intend to demonstrate that all the individuals who were presented (by prosecutors) as child soldiers, as well as their parents in some cases, deliberately lied before this court. The defense intends to show that six of them were never child soldiers, the seventh lied about his age and the conditions in which he enrolled, and the eighth never belonged to the UPC.”

By May 8, 2010, some 18 defense witnesses had testified, most of them in closed session and with protective measures such as face and voice distortion and the use of pseudonyms. Shortly before the defense case kicked off, Mr. Lubanga’s team had said most of their witnesses would testify in public minus protective measures. However, the majority of them have gone ahead to request the protection, saying they feared possible reprisals if it were known that they had testified at the trial.

Most of the defense witnesses who have given some of their evidence in public session have stated that intermediaries of the ICC’s prosecution investigators coached witnesses and fabricated evidence to implicate Mr. Lubanga. They have testified further that the intermediaries paid some people who went on to claim to the investigators that they had served as child soldiers in UPC’s armed wing.

These allegedly coached witnesses also reportedly claimed they were told by an OTP intermediary to say that they knew Mr. Lubanga, that the commanders of the FPLC routinely reported to him, that there were girl-child soldiers in the group who were often sexually violated by the FPLC commanders, and that the child soldiers in UPC were conscripted rather than enlisted.

However, prosecutors have put it to many of the defense witnesses that they are liars whose testimonies can not be believed, as they had already confessed to lying to the prosecution investigators for several years.

The defense has also produced two witnesses, both purportedly former child soldiers in the UPC, who claimed that their identities were stolen by two individuals who went on to gain the status of victims participating at the trial. The two individuals alleged to be using stolen identities testified in court last January, and recounted how they were abducted, tortured during training, and got forced to take part in battles that claimed the lives of some of their friends.

Why the trial was delayed a second time

In July 2010, judges ordered a second stay of proceedings in the trial of Thomas Lubanga and ordered his immediate release from ICC detention when prosecutors refused to honor an order by trial judges to disclose to the defense the identity of an intermediary, who had helped prosecution investigators contact witnesses. The order was prompted by defense claims that prosecution intermediaries bribed and coached witnesses to provide false testimony to court. The prosecution immediately appealed the decision of the Trial Chamber on the stay of proceedings and release of Mr. Lubanga. Prosecutor Luis Moreno-Ocampo argued that if the identity of the intermediary were disclosed before protective measures, such as relocation, were put in place for him, the individual would have been at risk of reprisal attacks from Mr. Lubanga’s supporters.

It was not until October 8, 2010 when the Appeals Chamber ruled that the Trial Chamber erred when it stayed the proceedings without first imposing sanctions against the prosecutor following his failure to comply with the Trial Chamber’s orders. They said sanctions were a key tool for chambers to maintain control of proceedings within the trial framework and to safeguard a fair trial without having recourse to the remedy of staying proceedings. The decision to reverse the stay of proceedings also necessitated the reversal of the release order. Thus, Mr. Lubanga remained in detention, and the trial restarted on October 25, 2010.

Some issues to watch out for

There are a number of issues which have been prominent in the trial and some of which are likely to remain in focus as the trial progresses.

Abuse of process

A key issue that has been raised during the trial is the alleged abuse of process in collecting evidence and putting together the witnesses who have testified against Mr. Lubanga. The defense called witnesses, who provided testimony as to how evidence was fabricated, and then ask judges to throw out the case on the grounds of abuse of process. In December 2010, the defense filed a submission that accused the prosecution of rendering a fair trial impossible due to serious prejudice to the judicial process. The defense arguments addressed five main elements: 1) the role of four intermediaries; 2) the prosecutor’s negligence in failing to properly investigate evidence he introduced which, at least in part, was erroneous or mendacious; 3) the prosecutor’s deliberate failure to discharge his disclosure and inspection obligations; 4) the part played by certain participating victims; 5) failure on the prosecutor’s part to act fairly and impartially.

The prosecution has denied that there was any abuse of process and vigorously contested this charge by the defense, and on February 23, 2011, the Trial Chamber judges denied the defense request to permanently stay the trial for abuse of process. However, this issue is not yet concluded. In the final judgment reached after all evidence has been presented and closing arguments made, the Trial Chamber could still decide that the prosecution abused the process in certain particulars. If it has, the Chamber must still decide whether and to what extent it has an impact on the evidence.

Role of intermediaries

A related issue that is likely to stay in focus is the role of the intermediaries of ICC prosecution investigators. Various defense witnesses have implicated them in fabricating and corrupting evidence. Indeed, it can be said that the alleged incidences of abuse of process which the defense has said are ground to have judges consider halting the case have been placed squarely by all defense witnesses heard in public at the feet of intermediaries rather than officials of the OTP or other organs of the ICC.

So much has been said by defense witnesses about intermediaries that judges asked the Office of The Prosecutor (OTP) whether it was considering putting some of them to the witness stand. Judges also ruled that in view of evidence heard about the role played by one particular intermediary, the defense were entitled to knowing his identity.

Was Mr. Lubanga in charge of UPC’s military affairs?

The other issue that could be critical is whether Mr. Lubanga was in charge of the military affairs of UPC/FPLC. According to Mr. Moreno-Ocampo’s opening statement, Mr. Lubanga is the alleged founder of UPC and of FPLC. The ICC prosecutor also charges that Mr. Lubanga was the commander-in-chief of the FPLC, since September 2002 and at least until the end of 2003. The prosecution also alleges that Mr. Lubanga ordered and supervised the recruitment of child soldiers in his militia.

The defense contests these claims, and has promised to tender evidence to the effect that “Thomas Lubanga the political leader played no active role in the creation of the UPC military forces and in no way did he take part deliberately in a common plan to recruit minors.”

Knowledge and responsibility

Were child soldiers in UPC/FPLC enlisted or recruited? Mr. Lubanga’s defense has denied that he enlisted or used child soldiers. Instead, the defense argues that Mr. Lubanga opposed the enlistment and use of child fighters. According to several prosecution witnesses, the UPC/FPLC conscripted children, some of them right out of their primary schools. Some of the prosecution witnesses recounted in court how they were abducted, conscripted, trained under inhumane conditions at the UPC’s military camps, and were then forced to take part in fighting.

But a different story has been heard from the defense. First, the defense has submitted that all prosecution witnesses who claimed to have been child soldiers in the UPC were bogus. Second, the defense has indicated that it does not intend to show that there were no minors amongst the ranks of the FPLC. Instead, it plans to answer questions such as whether Mr. Lubanga initiated the recruitment of minors into the UPC forces, whether he helped to recruit minors in one way or another, and what his attitude was to the presence of minors amongst the UPC troops.

The defense has argued that many children volunteered to join the armed group because they wanted to be like their age-mates who were soldiers and routinely extorted money from civilians, or because they had nothing better to do in light of the war situation. Other witnesses – including experts called by prosecutors and by the chamber – suggested that children in an ethnically-motivated war might be forced by their families or community elders to join armed groups so as to defend their communities and to guard against ostracization.

In submitting that Mr. Lubanga did not take part in recruiting any minors, and that when he had the powers he endeavored to demobilize child soldiers, the defense is attempting to get Mr. Lubanga off the three charges of recruiting, conscripting, and using child soldiers.