On Monday December 1, the trial of Thomas Lubanga Dyilo (Lubanga) at the International Criminal Court (ICC) finally came to a close. In 2012, the first case ever tried at the first permanent international court resulted in a conviction and a sentence of 14 years in prison (less time already in custody awaiting and during trial). This decision was subject to appeal, and appealed it was by the defence who wanted a subsequent ruling on both the conviction and the sentence. Lubanga had been charged with the war crime of enlisting and conscripting children under the age of 15 years and using them to participate actively in hostilities. He was convicted as a co-perpetrator.
The impact of the Lubanga case, along with others like the Special Court of Sierra Leone cases (including that of Charles Taylor), is that they show the strength of the international legal norms prohibiting the use of children in war by way of teeth which the norms can be enforced. That being said, the effects of the prosecutions of recruiters of child soldiers are yet unseen. It is hard to say that either this, or other similar prosecutions of recruiters of child soldiers, has had a deterrent effect already. Nevertheless, these cases have an expressive value aside from any deterrent effect they may have. Trials are also an instrument of social communication, with symbolic significance, conveying a particular message of condemnation. The Lubanga trial is very important in this respect. As the first case to go to trial at the International Criminal Court, it is significant that the Lubanga trial was for the war crimes of conscripting and enlisting children under the age of 15 into an armed group. While the case against Lubanga has been criticized for being limited to conscripting and enlisting child soldiers, it makes an important statement about the seriousness of such behaviour.
The Lubanga case was disappointing in that it wasn’t as clean as one would hope. The trial was stayed more than once, in 2008 when the Court ruled that the Prosecutor’s refusal to disclose potentially exculpatory evidence breached Lubanga’s right to a fair trial and again in 2010 also for lack of disclosure of evidence by the Prosecutor. There are also claims of stolen identities and coaching of prosecution witnesses to give false testimony (trial judges acquiesced to the possibility that these claims are true), and many of the alleged former child soldiers who were witnesses for the prosecution gave contradictory evidence. Lessons learned from this trial will bolster best practices, but the effect of such messiness is a stain on the Court that is drawing criticisms (warranted or not) for a multitude of reasons, including its slow start and its lack of universal jurisdiction. As a new Court, the ICC is expected to have some ‘growing pains’ as it grapples with new challenges, encountering issues for the first time. Despite its problems, the Lubanga conviction is significant for underscoring the importance of the ICC to international justice and for its communication of international condemnation of the recruitment of children into armed combat.
It seems right that the ICC appeals chamber upheld the conviction and the sentence in this case. It did so, however, as a majority decision rather than a unanimous one. Judge Song offered a partly dissenting opinion and Judge Usacka claimed that she would have reversed Lubanga’s conviction because, to her mind, his guilt had not been proven beyond a reasonable doubt. According to the majority decision, despite some procedural problems, the Prosecutor was able to convince the trial judges that Thomas Lubanga Dyilo was responsible for the recruitment of children under the age of 15 into his armed force, the Union of Congolese Patriots, even with the exclusion of some of the evidence presented. The sentence may not have been what many had hoped, with the Prosecutor, victims and other interested parties anticipating a longer sentence than the 14 years he was given, but the conviction itself communicates significant condemnation and the 14 year sentence is not too light to detract from that message.
Of interest from the appeal chambers’ conclusion is Song’s partly dissenting opinion regarding the war crime of conscripting and enlisting child soldiers. The trial chambers interpreted Article (8) (2) (e) (vii) as three separate crimes (‘conscripting’, ‘enlisting’ and ‘using them to participate actively in hostilities’) and convicted Lubanga of each. Song argued in his opinion that the Article should be read as three separate conducts of one crime. However, this is now fodder for further debate, as the issue is not substantial enough to overturn the conviction or to affect the sentence. Although the Appeal Chamber should not defer to the interpretation of the law by the Trial Chamber, the Appeals Chamber can only intervene if the error materially affected the Trial Chamber’s decision.
Usacka’s Dissenting Opinion claimed that she would have overturned the conviction based on vagueness, both in regards to the factual details in the charges against Lubanga and the age element of the crime. The majority judges found that additional information provided by the Prosecutor was sufficient to counteract vagueness in the charges.
That the Appeals Chamber judgment is not unanimous underscores the importance of, and continuing concerns in regards to, protecting a defendant’s right to a fair trial at the ICC. Lubanga is still currently held in the Hague but will be transferred to a prison in one of the ICC member states to serve the rest of his sentence.