14 March 2012
Elizabeth Wilmhurst

Elizabeth Wilmshurst CMG

Distinguished Fellow, International Law Programme



The conviction of Thomas Lubanga Dyilo by the International Criminal Court (ICC) concludes the first trial by the ten-year old Court. Sentencing has yet to take place and there may be an appeal.

Lubanga was convicted of the war crime of conscripting and enlisting children under the age of 15 years and using them to participate actively in hostilities. Lubanga was the commander of the Union des Patriotes Congolais (UPC) and its armed wing, the Forces patriotiques pour la libération du Congo (FPLC), at a time when many armed conflicts were taking place in the mineral-rich eastern provinces of the Democratic Republic of Congo (DRC). 

The trial chamber, presided over by British judge, Sir Adrian Fulford, found that Lubanga had encouraged children to join the army and had personally used them among his bodyguards. He and others had participated in a common plan to build an army so that the UPC/FPLC could maintain political and military control over Ituri, a plan which resulted in the recruitment of children, whether voluntarily or by coercion, and their use in various ways in the hostilities. 

The trial chamber did not find it necessary to decide the meaning of 'use [children] to participate actively in the hostilities', and so did not determine whether sexual violence was included in the crime. But Judge Odio Benito added a separate opinion to the judgment stating that in the circumstances this had been an intrinsic part of involvement with the armed group and was therefore part of the war crime.

Following a criminal investigation where both investigators and witnesses were often under physical threat, a substantial part of the judgement assesses the reliability of the witnesses (by no means all were regarded as credible), and the role of the intermediaries used by the prosecution to contact witnesses (there was some persuasion of witnesses to lie). The prosecution were criticised by the court for their negligence in failing to verify the accuracy of some of the testimony.

The proceedings against Lubanga have lasted six years since he was transferred to custody in The Hague in March 2006. The length of the period is attributable partly to the need for the new court to settle its procedures and to show the way for future cases. But there were undoubted hitches: the trial chamber twice ordered Lubanga's release – because of the Prosecutor's refusal to disclose material received in confidence but which was potentially exculpatory to the defendant, and because of a problem as to the role of intermediaries used by the prosecution to find witnesses. Lubanga was not released; the trial went on; but it was delayed.

The judgement will contribute to the body of international criminal law which has been developed by the tribunals for the former Yugoslavia and for Rwanda. Its finding that the relevant armed conflict was non-international is a sound one, and its discussion on the criteria for co-perpetration in a crime, together with the separate opinion on the point by Judge Fulford, will no doubt be taken forward in further consideration by the appeals chamber. 

One man has been convicted. There are other cases involving DRC defendants before the Court. But the crimes with which they are accused are a part of massive violence which continues ten years after Lubanga's crimes were committed. The ICC treaty expressed the determination that the Court would contribute to preventing such crimes. While this hope has yet to be realised, the trial is a milestone in the search for international justice and reminds the world again that persons who engage children in an armed conflict are criminals. 

Further Resources:

A Personal History of the War Crimes Tribunals
Audio, Transcript
Professor David Scheffer, US Ambassador-at-Large for War Crimes Issues (1997-2001)