Lubanga was the very first person ever to be tried by the International Criminal Court (ICC). On December 1st he will be the first to hear the outcome of his appeal. The trial Chamber had convicted Lubanga for child soldiering and sentenced him to 14 years of imprisonment, but who is Lubanga?
Thomas Lubanga Dyilo was born on 29 December 1960 in the Ituri District in Democratic Republic of Congo (DRC) as a member of the Hema ethnicity. He studied at the university in Kisangani and graduated in psychology thus showing to be an intelligent young man. He is married and has 7 children and did not have a criminal record prior to his conviction by the ICC. Lubanga was born in the very same year that the DRC gained its independence. Patrice Lumumba, the first democratically elected president of the DRC only ruled for a few months after which he was executed. As off 1965 Mobutu ruled the country for 31 years. His reign ended with the start of the Congolese wars in the mid-nineties when Lubanga was in his mid-thirties. The Great Lakes region was destabilized because of the war and genocide in Rwanda and many of the conflicts within this area are intertwined. The conflict in the DRC started in the mid-nineties and despite a peace accord in 2003 is still ongoing. It is probably the worst and most devastating conflict in the world. It is estimated that over 5.4 million people died as a consequence of the war, 2.6 million people are internally displaced and 500.000 have fled the country. The conflict is characterized by mass atrocities, widespread sexual violence and the use of child soldiers. In 1999 the UN Security Council qualified the conflict as a threat to international peace and security and peace-keeping forces are active within the DRC.
Many different armed groups were involved in the conflict and Lubanga was leading one of these groups. Initially Lubanga was a member of the pro-Ugandan Congolese Rally for Democracy-Liberation Movement (RCD-ML). In 2001 at the age of 41 he however founded the Union des Patriotes Congolais (UPC) and its military wing the Forces Patriotiques pour la Liberation du Congo (FPLC). Lubanga was the head of the UPC/FPLC and as such the main architect of its policies. He was also commander in chief of the military wing and as such he appointed the other members, provided weapons, secured funding and played an important organisational and logistical role. Lubanga however was not a soldier himself and although he was involved in the discussions and consulted in all military matters he did not always have de facto control over the FPLC and was not involved in all military operations. There were however regular meetings between Lubanga and the military leaders in which he was informed on all ongoing operations. Lubanga was however nevertheless the undisputed political leader and within the hierarchy of the party he was the ultimate authority and thus responsible for the political and the military wing of the party.
The UPC/FPLC became one of the major players in the Congolese conflict and were involved in massive human rights violations including ethnic violence, killings, torture, sexual violence and mutilations which all qualify as crimes against humanity and war crimes. According to a population survey conducted by Lynn Lawry et al. (2014) over 56% of the population within the Ituri region and an estimated 2 million people suffered from conflict-related violence, many of whom suffered sexual violence. Although most groups involved in the conflict committed mass atrocities, the UPC and the FNI were the two main perpetrator-groups. It has furthermore been alleged that the UPC/FPLC were involved in the killing of nine UN peacekeepers in Ituri in February 2005. The peacekeepers came from Bangladesh and were ambushed and killed. Lubanga was however not prosecuted for these crimes. The UPC and FPLC also forcefully abducted and used child soldiers in a very systematic way. It is alleged that 3.000 child soldiers were recruited into the ranks of the FPLC. The recruitment of child soldiers under the age of 15 is a war crime even if the children voluntarily join the armed forces. As the ultimate leader of the UPC/FPLC Lubanga was responsible for their recruitment. He visited training camps in which child soldiers were trained and gave speeches to his troops including child soldiers in order to boost their morale. He also tried to convince the population to give up their children and send them to the UPC/FPLC to fight. He also used some of these child soldiers below the age of 15 as his personal bodyguards. He thus played an important role in providing the context in which the recruitment of child soldiers was considered a legitimate method within the UPC/FPLC. Military commanders such as Ntaganda were more involved in the day-to-day recruitment of child soldiers, but Lubanga was the ultimate authority responsible for the means and methods used by Ntaganda.
The case of the DRC was referred to the ICC by the president of the DRC, Joseph Kabila in March 2003 and investigations started in June 2004. Six suspects were indicted. Thomas Lubanga and his confederate Bosco Ntaganda were indicted. Katanga, the alleged leader of the FRPI, and Ngudjolo Chui, the alleged leader of the FNI were also indicted and have already been tried: Katanga was found guilty on 7 March 2014 as an accessory to crimes against humanity and war crimes. On 23 May 2014 he was sentenced to 12 years imprisonment. Ngudjolo Chui was acquitted on 18 December 2012. Both decisions are currently under appeal. Two alleged leaders of the Forces Democratiques pour la Liberation du Rwanda (FDLR) were also indicted, but the charges against Callixte Mbarushimana were declined and he was released from custody in December 2011, while his confederate Sylvestre Mudacumura is still at large. It is remarkable that up till today the leaders of the Mai-Mai and the LRA were not indicted for the crimes committed in the DRC as these groups were also responsible for many atrocities. Leading members of the LRA were off course indicted for crimes committed in Uganda.
Thomas Lubanga was indicted by the ICC on 10 February 2006. At the time he was already in prison for his role in the death of the nine Bangladeshi peacekeepers. He was surrendered to the ICC on 17 March 2006 and his trial started on 26 January 2009. He was the first suspect in ICC custody, the first to be tried and the first to be convicted. The main charges were related to enlisting and conscripting child soldiers under the age of 15 and using them to actively engage in the hostilities in the period July 2002 until December 2003. The fact that the prosecution only focused on child soldiering was heavily criticized by many as the UPC/FPLC was responsible for many crimes and mass atrocities including widespread sexual violence. The charges against Bosco Ntaganda, one of the military leaders of the FPLC are much broader than the ones for which Lubanga is prosecuted. The charges against Ntaganda were confirmed in June 2014 and his trial is scheduled for June 2015. The main legal issues dealt with in the Lubanga case were the definition and participation of victims; the presentation and evaluation of evidence; the nature of the armed conflict; the recruitment of child soldiers as a war crime; and the modes of liability (Ambos 2012). During the trial 129 persons were granted the status of victims. Only child soldiers and their parents were granted the status of victims. Because the prosecution only indicted Lubanga for child soldiering, none of the other victims: people who were maimed, tortured, killed or raped by Lubanga’s troops could be granted the status of victims.
After 204 trial days the verdict was delivered on 14 March 2012. The trial had lasted over three years. Lubanga was found guilty as a co-perpetrator . He was considered a participant in the common plan to enlist and conscript child soldiers and to actively use them in hostilities. It was ruled that he did not meant to do so but that he was aware that in the natural course of events this would occur. Taken his overall coordinating role as both the political leader and commander in chief he was found responsible. Despite the criticism related to – amongst others – the very limited charges and the time the trial lasted, the verdict can be considered a land-mark decision as it is the very first verdict by the ICC. Although the Special Court of Sierra Leone had also convicted suspects for the war crime of child soldiering, this verdict can nevertheless be considered an important step forward in the fight against the use of child soldiers. On 10 July 2012 the Trial Chamber sentenced Lubanga to 14 years imprisonment. During the sentencing hearing Lubanga stated that he was against the recruitment of child soldiers and that he had fought for peace and hoped that peace would return to Ituri. On 7 August 2014 the ICC rendered its first decision on the issue of reparation and decided that the reparations had to be collected by the Trust Fund for Victims. All three decisions (verdict – sentence – reparation) are under appeal. The verdict in the appeal will be handed down on 1 December 2014 at 16.30. Lubanga now aged 53, is awaiting the outcome of the appeal in the Hague detention centre.
- Ambos, K. (2012). The first judgment of the International Criminal Court (Prosecutor v. Lubanga): a comprehensive analysis of the legal issues, International Criminal Law Review 12(2), pp.
- Lawry, L. A.M. de Brouwer, A. Smeulers, J.C. Rosa, M. Kisielewski, K. Johnson, J. Scott & J. Wieczorek (2014). The use of population-based surveys for prosecutions at the International Criminal Court: a case study of Democratic Republic of Congo, International Criminal Justice Review 24(1), 5-21, see: //icj.sagepub.com/content/early/2014/02/24/1057567714523982.full.pdf+html