Global Policy Forum

By IWPR Staff in The Hague

The trial of Congolese militia leader Thomas Lubanga Dyilo, which begins on January 26, is considered a milestone for human rights, international justice, and the International Criminal Court, ICC, in The Hague. The Lubanga trial will be the first international court case in which the use of child soldiers, defined as children under the age of 15, is prosecuted as a crime of war. Child soldiers have been used in most wars fought in Africa and other continents over the past three decades. Children across Africa, including Uganda, Liberia, Zimbabwe, and Democratic Republic of Congo, have been turned into killing machines in conflicts whose motivations and origins they scarcely understand.

The ICC's prosecutor Luis Moreno-Ocampo explained the significance of the charges saying, "Turning children into killers jeopardises the future of mankind." A sealed warrant for Lubanga's arrest was issued in February 2006, but he was not apprehended until March 17, 2006 when the warrant was made public. Lubanga was transferred to the ICC's prison in The Hague, and his first court appearance was on March 20 that year. The arrest of Lubanga was part of a wide-ranging and on-going investigation by the ICC into atrocities in DRC. Lubanga stands accused of "enlisting and conscripting children under the age of fifteen and using them to participate actively in hostilities". Children's organisations and human rights activists welcomed the arraignment of Lubanga as a step toward the protection of children's rights and a first step towards ending impunity. Gender justice groups, however, are frustrated that only charges of recruiting child soldiers have been bought against Lubanga. They say his militia is responsible for rape and other forms of sexual violence.

Before being transferred to the ICC, however, Lubanga had been arrested and imprisoned in the DRC since 2005. This came after the military wing of his political party, the Union of Congolese Patriots, was accused of killing nine Bangladeshi peacekeepers in the Ituri region. The UPC's military wing, the Forces Patriotiques pour la libération du Congo, FPLC, was also implicated in some of the worst atrocities in Ituri. As its commander-in-chief, Lubanga was accused of directing its activities. And according to the ICC, by virtue of this "de facto authority, he had ultimate control of …policies and practices", including the forced conscription and training of child soldiers. Established in 2000 by Lubanga, the UPC was one of several warring factions in the region, and is largely composed of the Hema ethnic group. The UPC has subsequently functioned as a political party and Lubanga describes himself as a politician, not a militia leader.

The trial will be the first to be conducted by the ICC, based in the Hague, Netherlands, and which came into existence in 2002. In a unique development, victims in the case will be represented by their own attorneys and supported by NGOs and human rights groups who work in Ituri and other parts of the Congo. Whilst a praiseworthy initiative, participation with the court has proved hazardous for several Congolese lawyers and the intermediaries they use to contact victims. Carine Bapita, a lawyer from Kinshasa who represents victims in the Lubanga case, has received several threats against herself and her family. In 2008, she was forced to fly some of the intermediaries she uses – to pass information between The Hague and victims on the ground – out of the DRC because of serious threats to their safety. The trial of Lubanga has been nearly three years in the making, and has suffered many setbacks and delays. Although Lubanga was arrested in March 2006, it was not until late January 2007 that the ICC confirmed the charges against him and ordered a trial. ICC judges were unable to set a trial date though 2007, however, because of unresolved issues over procedures, the roles and rights of victims in the trial, and how evidence should be handled. The issue of evidence nearly derailed the trial and was a severe challenge to the credibility of the ICC. The case was initially due to begin on March 31, 2008, but was delayed until late June in a dispute over how evidence was gathered and subsequently handled by the prosecutor. Frustration was evident throughout the court. "I will make no secret of the fact of my real frustration, already expressed in no uncertain terms in open court, about delays in getting our first trial up and running," the trial judge Adrian Fulford told a group of diplomats and human rights representatives in The Hague. "We are now over a year later and the inevitable and pressing question is why has the case not started?"

The conflict arose over the failure by the prosecutor to disclose to the defence all its evidence and the identities of witnesses testifying against Lubanga. The evidence was supposed to be provided to the defence by mid-December 2007, but by mid-February, it had received the identities of less than half the witnesses. Other crucial evidence had been provided only in redacted or summary form. Although the trial was due to begin on June 23, 2008, judges on June 13 called for an indefinite halt to the case and discussed releasing Lubanga after more than two years in custody. The judges accused the prosecutor of abusing his power and said the Lubanga trial "has been ruptured to such a degree that it is now impossible to piece together the constituent elements of a fair trial". The judges' decision in the case was appealed, which also delayed the release of Lubanga, and allowed the evidence problems to be resolved. Finally, on November 18, 2008, ICC judges lifted the formal "stay of proceedings" and set the Lubanga trial for January 26, 2009.