Case of the Prosecutor v. Thomas Lubanga Dyilo
Background
The current case against Mr. Thomas Lubanga Dyilo comes as a result of the investigation by the Prosecutor of the International Criminal Court (ICC) into the situation in the Democratic Republic of the Congo (DRC) and the alleged crimes committed in the country since 1 July 2002. The Prosecutor requested an arrest warrant against Mr Lubanga on 12 January 2006, which was approved by Pre-Trial Chamber I on 10 February. Mr Lubanga was arrested by the ICC on 17 March 2006 and made his initial appearance before the Court on 20 March. The charges against Mr. Lubanga were confirmed on 29 January 2007 following a series of postponements. His case was transferred to Trial Chamber I shortly thereafter.
The Lubanga trial has experienced a series of delays since the case was transferred to the Trial Chamber. The trial was suspended indefinitely in June 2008 as the Prosecution was unable to disclose a large amount of potentially exculpatory material due to confidentiality restrictions. Under Article 54(3)(e) of the Rome Statute, the Prosecution may obtain documents from information providers (such as the United Nations) on agreement that they remain confidential from other organs of the Court. Following extensive ongoing negotiations, in October 2008 the Prosecution announced that it had reached agreements with the information providers to disclose all the material to the Trial Chamber. The judges of the Chamber reviewed the material and subsequently confirmed, in November 2008, that the trial could proceed. A trial date of 26 January 2009 was set. To date 93 victims have been granted the right to participate in the Lubanga trial.
Thomas Lubanga is represented by lead counsel Maître Catherine Mabille and co-counsel Jean-Marie Biju-Duval.
The Accused
Mr. Lubanga is alleged to be the former President of the primarily Hema ethnicity political group Union des Patriotes Congolais (UPC) since its foundation in September 2000. He is also alleged to have been Commander-in-Chief of its military wing, the Forces Patriotiques pour la Libération du Congo (FPLC). The UPC was allegedly formed with Ugandan assistance during the Ituri conflict. Following the deaths of nine United Nations Mission peacekeepers in the DRC in March 2005, Mr. Lubanga, along with other militia leaders, was arrested by Congolese authorities and imprisoned in Kinshasa. He was arrested by the ICC in March 2006. 
The Prosecution alleges that Mr. Lubanga actively recruited children under the age of fifteen years, subjected them to military training and subsequently used them to participate actively in hostilities, including as bodyguards for military officers. Mr. Lubanga is alleged to have exercised de facto authority within the UPC and the FPLC and to have had ultimate control over the adoption and implementation of their policies. Mr. Lubanga is charged with criminal responsibility as a co-perpetrator, jointly with other FPLC officers and UPC members.
The Charges
Pre-Trial Chamber I confirmed the charges against Mr Lubanga on 29 January 2007, finding that there is sufficient evidence to establish substantial grounds to believe that he is responsible, as a co-perpetrator under Article 25(3)(a) of the Rome Statute, for the war crimes of enlisting children under the age of fifteen years into the FPLC and using them to participate actively in hostilities. Although the Prosecution had only presented evidence relating to the non-international nature of the armed conflict within the context of which the allegations occurred, the Pre-Trial Chamber chose to confirm the charges in the context of both non-international AND international armed conflicts.
Mr. Lubanga will now be tried for the following:
Charges arising in the context of “Non-international armed conflict”:
Count 1: CONSCRIPTING CHILDREN INTO ARMED GROUPS, a WAR CRIME, punishable under Articles 8(2)(e)(vii) and 25(3)(a) of the Rome Statute.
Count 2: ENLISTING CHILDREN INTO ARMED GROUPS, a WAR CRIME, punishable under Articles 8(2)(e)(vii) and 25(3)(a) of the Rome Statute.
Count 3: USING CHILDREN TO PARTICIPATE ACTIVELY IN HOSTILITIES, a WAR CRIME, punishable under Articles 8(2)(e)(vii) and 25(3)(a) of the Rome Statute.
Charges arising in the context of “International armed conflict”:
Count 4: CONSCRIPTING CHILDREN INTO NATIONAL ARMED FORCES, a WAR CRIME, punishable under Articles 8(2)(b)(xxvi) and 25(3)(a) of the Rome Statute.
Count 5: ENLISTING CHILDREN INTO NATIONAL ARMED FORCES, a WAR CRIME, punishable under Articles 8(2)(b)(xxvi) and 25(3)(a) of the Rome Statute.
Count 6; USING CHILDREN TO PARTICIPATE ACTIVELY IN HOSTILITIES, a WAR CRIME, punishable under Articles 8(2)(b)(xxvi) and 25(3)(a) of the Rome Statute.
Jurisdiction & Admissibility
The case was found to fall within the Court’s jurisdiction by Pre-Trial Chamber I, as the alleged conduct is a crime under the Rome Statute and took place after July 2002, in the region of Ituri in the territory of the DRC, a party to the Rome Statute.
The ICC is a court of last resort and, therefore, cases are only admissible where the state is unwilling or unable to genuinely carry out the investigation or prosecution. The case was deemed by Pre-Trial Chamber I to be admissible due to the fact that although the DRC had an operating court system and Thomas Lubanga had been detained for several charges, national proceedings did not encompass the conduct alleged by the ICC Prosecutor. The case was also found to meet the ‘gravity threshold’ required by the court given the ‘social alarm’ caused by the crimes, Mr. Lubanga’s alleged position in and control over the UPC/FPLC, and the group’s unique role in the Ituri conflict.
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Click here for court diary summaries of the Lubunga case