Thomas Lubanga Dyilo

Thomas Lubanga was arrested on 19 March 2005 and imprisoned in Makala, Kinshasa.

The Pre-Trial Chamber of the International Criminal Court (ICC), concluding that there were reasonable grounds for believing that Lubanga had committed war crimes, namely the enlistment and the conscription of children under 15 years old and their use for direct participation in hostilities, delivered an arrest warrant against him on 10 February 2006. Lubanga was transferred to the Court on 17 March 2006 and detained in the detention unit of the Court in Scheveningen, the Netherlands.

A procedural hearing took place on 20 March 2006, in which Lubanga appeared for the first time before the Court. On 28 August 2006, he is formally accused by the prosecutor of having committed 3 crimes: the conscription, the enlistment and the use of children under 15 years old in an armed group in order to make them participate directly in the hostilities, from July 2002 to December 2003. It is the only case before the ICC which is only related to the use of child soldiers.

The hearing of confirmation of charges took place from 9 to 28 November 2006. The Pre-Trial Chamber confirmed the three charges proposed by the prosecutor against Lubanga on 29 January 2007.

On 13 June 2008, some days before the scheduled opening date of the trial before the Trial Chamber I, that Chamber ordered the suspension of the case, arguing that Lubanga’s right to a fair trial could not be respected since the prosecutor did not want to reveal some important and potentially exculpatory evidence. On 2 July 2008, the Trial Chamber ordered the release of Lubanga. The Prosecutor immediately appealed that decision and Lubanga stayed in detention until the decision of the Appeals Chamber, on 21 October 2008, confirming the suspension of the trial but reversing the decision of release of Lubanga. On 18 November 2008, the Trial Chamber put an end to that incident when the prosecutor finally revealed the documents.

The trial against Lubanga eventually opened on 26 January 2009 before the Trial Chamber I of the ICC, with declarations for the prosecutor, the defense and the legal representatives of victims participating in the trial.

The prosecutor presented its evidence until 13 July 2009, calling 36 witnesses (3 of them as experts). According to the prosecutor, as he was a general commander of the FPLC (the armed wing of UPC), Lubanga participated in the conscription of child soldiers, and some of his bodyguards were children. The prosecutor tried to prove that Lubanga was opposed to the demobilization of child soldiers, despite several denials of Lubanga. After many witnesses talked about sexual violences on young girls by armed groups, the prosecutor asked the Court to add charges of sexual slavery and cruel treatment against Lubanga, but the appeals judges rejected that request.

The trial then went on with, for the first time in the history of international criminal law, the victims’ testimony starting on 12 January 2010. In total, 118 victims were authorized to participate in the proceedings, through three teams of legal representatives that could ask questions to the witnesses. Three of those victims were called to the bar in order to give evidence before the Court.

A second incident provoked a suspension of the trial in July 2010 and the judges ordered that Lubanga be released when the prosecutor refused to reveal the identity of one of his middle-man having facilitated contacts between investigators of the office of the prosecutor and witnesses. The defense affirmed that the middle-men used by the prosecutor are corrupt and that they encourage witnesses to produce false evidence. The prosecutor immediately appeals the Trial’s Chamber decision and takes the necessary measures in order to protect his witnesses and his middleman before eventually revealing his name. In October 2010, the Appeals Chamber decided that the Trial Chamber had erred in suspending the trial and that it could have taken other measures, such as the imposition of penalties against the prosecutor.

Lubanga’s Defense team then called 19 witnesses at the bar. They argued that Lubanga was only a politician of the UPC and that he had no role in the FLPC. While he admitted that there were some child soldiers within the FLPC, Lubanga denied having participated in their conscription and enlistment. On the contrary, he affirmed having actively participated in the demobilization process of child soldiers.

The Chamber called 4 expert witnesses, and the oral concluding observations took place on 25 and 26 August 2011. The Chamber then closed the proceedings and deliberated.

On 14 March 2012, more than three years after the beginning of the trial, the Trial Chamber decided that, despite the various flaws in the course of the trial, the prosecution had proven beyond reasonable doubt that Lubanga was guilty of conscription, enlistment and use of children under 15 years old in an armed group in order to make them participate directly in the hostilities, from early september 2002  to 13 August 2003.

It however insisted on the fact that the prosecutor should not have delegated its investigations and should have exercised a better supervision over its intermediates so as to avoir conflicts of interest and to prevent them from encouraging witnesses to give false testimonies.

Lubanga remains in custody of the Court, which will analyze, from 13 June 2012 onwards, the penalty to be imposed and establish some principles concerning the reparations to award to victims.