Lubanga ICC case: today’s judgment is a step towards justice for victims in the DRC, but lessons need to be learned by the prosecution to avoid evidentiary weaknesses
Today, the ICC Appeals Chamber upheld Thomas Lubanga’s conviction and 14-year jail sentence. Four out of five judges found no reason to interfere with the Trial Chamber’s historic decision of 14 March 2012, which convicted Lubanga of the war crime of enlisting and conscripting children under 15 into his armed group, and using them in the armed conflict in the Ituri region between 2002 and 2003.
“Today’s decision is a positive development as it brings victims in the case closer to justice and to receiving reparation for the harm they suffered, after almost eight years of proceedings,” said Carla Ferstman, Director of REDRESS.
The Appeals Chamber judgment now clears the way for the Court to focus on the crucial issue of issuing reparations to Lubanga’s victims. Children who were recruited and used in armed conflict by Lubanga’s armed group, the Forces patriotiques pour la libération du Congo (FPLC), and their families have now waited over a decade to see their suffering acknowledged and to receive reparation for the harm inflicted upon them.
In August 2012, the Trial Chamber issued a decision on reparation in the case, affirming the fundamental rights of victims of war crimes, crimes against humanity and genocide to reparations, but, this decision remains under appeal; and the process of awarding reparations to victims will not begin until the appeal is resolved.
“We urge the Appeals Chamber to rule without delay on the appeals against the reparation decision,” said Ferstman. “Years of armed conflict have left many victims without the means to deal with the devastating consequences of these crimes and many
live in dire circumstances.”
Judge Ušacka, in a separate dissenting opinion, felt that Lubanga’s appeal against the conviction should have been upheld because of the significant weaknesses in the Prosecution’s evidence, particularly relating to the ages of the child soldiers, which she felt had not been proven beyond a reasonable doubt.
“Fairness to the accused should not be sacrificed in favour of putting historical events on the record,” she said.
REDRESS urges the Prosecutor to reflect on the evidentiary issues raised during the proceedings, in order to ensure that in future the strongest possible cases are brought to trial.
The Lubanga trial was at risk of ending prematurely on two occasions, as a result of a variety of issues concerning insufficient evidence and problems with witnesses. That kind of result would have been catastrophic for victims.
REDRESS also urges the Court to continue its outreach efforts among those victims and communities most affected by the crimes, so the proceedings and their outcomes are as meaningful and relevant as possible for them.
For further information, please contact: Eva Sanchis, REDRESS Communications Officer, on eva[at]redress.org or +44 20 7793 1777.
Background on the case
On 26 January 2009 the ICC opened its first trial in the case of former Congolese warlord Thomas Lubanga Dyilo. As the alleged leader of the Union of Congolese Patriots (UPC) and the commander-in-chief of its military wing, the Forces patriotiques pour la libération du Congo (FPLC), Lubanga was accused of enlisting and conscripting children under the age of 15 and using them to participate actively in hostilities, in the Ituri region, between September 2002 and to August 2003.
On 14 March 2012, ICC Trial Chamber I rendered its judgment, convicting Lubanga of the war crimes of enlisting, conscripting, and using children under the age of 15 to actively participate in hostilities in the armed conflict in Ituri between 2002 and 2003.
On 10 July 2012, Trial Chamber I sentenced Lubanga to 14 years imprisonment. He was expected to serve eight years because, at the time of sentencing, he had been in the court’s custody for about six years.
On 7 August 2012, the Chamber issued its decision on reparation for victims, establishing the principles that should guide the process of issuing reparation to victims and endorsing the Trust Fund for Victims’ plan on implementing the reparations.
On 3 October 2012, Lubanga appealed both his conviction and sentence, asking for an acquittal and annulment, or a reduction, of the 14-year sentence. The ICC Prosecutor appealed for the sentence to be revised upwards. All parties and participants, as well as the Trust Fund for Victims, also submitted observations on reparations proceedings.
In his initial appeal against his conviction and sentence, Lubanga argued that the Prosecution had failed in its duty to investigate alleged factual errors in relation to the age of individuals within the UPC Presidential Guard. It also argued that the Chamber had erred when ruling that:
o the age of children could be determined from their physical appearance,
o there was no difference between conscription and enlistment,
o the determination of a child’s participation in hostilities could be based on the risk encountered by the child rather than by the importance of his/her contribution to military operations.
In December 2013, the Defence asked permission to add a new ground of appeal and new evidence about the age of Lubanga’s bodyguards. The new ground is based on allegations that the Prosecutor failed to disclose information that it had in its possession since 2004, which is potentially pertinent to the finding of the use of children under the age of 15 in the UPC Presidential Guard and could jeopardize the reliability of a considerable part of the findings on which the conviction of Lubanga is based.
On 13 January 2014, the Appeals Chamber granted Lubanga’s request to add an additional ground of appeal and called on the Prosecutor and victims representatives to submit their responses.
The main focus of an appeals hearing on 19 and 20 May 2014 was the age of child soldiers under the command of Lubanga.
On 14 December 2012, the Chamber decided to put the appeals against the reparations decision on hold until the appeals against the conviction and sentence were resolved. For more information on the issues on appeal in relation to the decision on reparation, see our Q&A here.
On 1 December the Appeals Chamber issued it decision on the appeals to the conviction and sentence.
About REDRESS: We are an award-winning human rights charity based in London which works internationally to combat torture by seeking justice and reparation for torture survivors. Since 1992, we have consistently fought for the rights of torture survivors and their families in the UK and abroad and have intervened in a range of leading torture cases. We are also the facilitator of the Victims’ Rights Working Group (www.vrwg.org), a network of more than 400 national and international organisations and experts that advocates on victims’ issues before the International Criminal Court.