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Thomas Lubanga Dyilo

02.05.2016 ( Last modified: 07.06.2016 )
Trial Watch would like to remind its users that any person charged by national or international authorities is presumed innocent until proven guilty.

facts

Thomas Lubanga Dyilo was born on 29 December 1960 in Djiba in the Ituri district of the Democratic Republic of the Congo. He belongs to the Hema ethnic group.

After completing his studies at the University of Kisangani, where he obtained a degree in Psychology, Lubanga held a position as assistant at the University of Cepromad between 1990 and 1994. During this same period, he had other lucrative activities in a variety of areas such as agriculture or gold trading. From 1986 until 1997, he reportedly headed an organisation called “Votura”.

Thomas Lubanga turned to politics at the end of 1999 and soon thereafter was elected a member of the Ituri district parliament.

On 15 September 2000, he founded the “Union des Patriotes Congolais” (UPC), becoming its President, as well as its armed wing the “Forces Patriotiques pour la Liberation du Congo (FPLC) of which he became the Commander-in-Chief.

In 2001, Thomas Lubanga was appointed National Deputy Secretary for Youth and Sport of the “Front for the Liberation of Congo” (FLC) and Military Commander of the Rally for Congolese Democracy – Liberation Movement (RCD-ML), a rebel movement with close links to Uganda.

In August 2002, the UPC gained control of the town of Bunia. In September of the same year the movement was re-named the “Union des Patriotes Congolais/Reconciliation et Paix (UPC/RP). Thomas Lubanga assumed the presidency and appointed, by decree, the principle members of the executive committee for Ituri. By a second decree he founded, in an official manner, the FPLC and continued to assume the position as its Commander-in-Chief.

Even before the creation of the FPLC, it was alleged that the UPC actively recruited children under the age of 15 years and forced them to undergo military training mainly at its camp at Sota. This practice became more systematic after the creation of the FPLC. The children allegedly were forced to participate in hostilities, particularly by becoming bodyguards to high ranking officers in the FPLC. As President of the UPC and Commander-in-Chief of the FPLC, Thomas Lubanga was said to be aware of such practices and to have encouraged them, especially between September 2002 and 13 August 2003, during the armed conflict in Ituri.

The UPC was also accused of the massacre of civilians in Ituri, in particular in the region of Bunia, the main town in the district of the Eastern Province in 2002. Between 2002 and 2003, more than 800 civilians were said to have been killed by the UPC in the mining town of Mongbwalu and the adjacent villages. Civilians of Lendu origin were said to have been especially targeted. Ituri, a region which is rich in raw materials, was the scene of violent confrontation between different militia forces leading to massacres and the enforced displacement of civilian populations.

According to Radio Okapi, the radio station of the United Nations Mission to the RDC (MONUC), Thomas Lubanga was said to have decreed that each family living in the zones under his control was under the strict obligation to contribute to the war effort by donating either a cow, money, or even a child who then had to join the rebel ranks of his militia forces.

Thomas Lubanga was arrested on 19 March 2005 and imprisoned in Makala, Kinshasa.

 

legal procedure

Thomas Lubanga was arrested on 19 March 2005 and imprisoned in Makala, Kinshasa.

The Pre-Trial Chamber of the International Criminal Court (ICC), concluding that there were reasonable grounds for believing that Lubanga had committed war crimes, namely the enlistment and the conscription of children under 15 years old and their use for direct participation in hostilities, delivered an arrest warrant against him on 10 February 2006. Lubanga was transferred to the Court on 17 March 2006 and detained in the detention unit of the Court in Scheveningen, the Netherlands.

A procedural hearing took place on 20 March 2006, in which Lubanga appeared for the first time before the Court. On 28 August 2006, he is formally accused by the prosecutor of having committed 3 crimes: the conscription, the enlistment and the use of children under 15 years old in an armed group in order to make them participate directly in the hostilities, from July 2002 to December 2003. It was the only case before the ICC which is only related to the use of child soldiers.

The hearing of confirmation of charges took place from 9 to 28 November 2006. The Pre-Trial Chamber confirmed the three charges proposed by the prosecutor against Lubanga on 29 January 2007.

On 13 June 2008, some days before the scheduled opening date of the trial before the Trial Chamber I, that Chamber ordered the suspension of the case, arguing that Lubanga’s right to a fair trial could not be respected since the prosecutor did not want to reveal some important and potentially exculpatory evidence. On 2 July 2008, the Trial Chamber ordered the release of Lubanga. The Prosecutor immediately appealed that decision and Lubanga stayed in detention until the decision of the Appeals Chamber, on 21 October 2008, confirming the suspension of the trial but reversing the decision of release of Lubanga. On 18 November 2008, the Trial Chamber put an end to that incident when the prosecutor finally revealed the documents.

The trial against Lubanga eventually opened on 26 January 2009 before the Trial Chamber I of the ICC, with declarations for the prosecutor, the defense and the legal representatives of victims participating in the trial.

The prosecutor presented its evidence until 13 July 2009, calling 36 witnesses (3 of them as experts). According to the prosecutor, as he was a general commander of the FPLC (the armed wing of UPC), Lubanga participated in the conscription of child soldiers, and some of his bodyguards were children. The prosecutor tried to prove that Lubanga was opposed to the demobilization of child soldiers, despite several denials of Lubanga. After many witnesses talked about sexual violences on young girls by armed groups, the prosecutor asked the Court to add charges of sexual slavery and cruel treatment against Lubanga, but the appeals judges rejected the request.

The trial then went on with, for the first time in the history of international criminal law, the victims’ testimony starting on 12 January 2010. In total, 118 victims were authorized to participate in the proceedings, through three teams of legal representatives that could ask questions to the witnesses. Three of those victims were called to the bar in order to give evidence before the Court.

A second incident provoked a suspension of the trial in July 2010 and the judges ordered that Lubanga be released, when the prosecutor refused to reveal the identity of one of his middle-man having facilitated contacts between investigators of the office of the prosecutor and witnesses. The defense claimed that the middle-men used by the prosecutor were corrupt and that they used to encourage witnesses to produce false evidence. The prosecutor immediately appealed the Trial’s Chamber decision and took the necessary measures in order to protect his witnesses and his middleman before eventually revealing his name. In October 2010, the Appeals Chamber decided that the Trial Chamber had erred in suspending the trial and that it could have taken other measures, such as the imposition of penalties against the prosecutor.

Lubanga’s Defence team then called 19 witnesses at the bar. They argued that Lubanga was only a politician of the UPC and that he had no role in the FLPC. While he admitted that there were some child soldiers within the FLPC, Lubanga denied having participated in their conscription and enlistment. On the contrary, he affirmed having actively participated in the demobilization process of child soldiers.

The Chamber called 4 expert witnesses, and the oral concluding observations took place on 25 and 26 August 2011. The Chamber then closed the proceedings and deliberated.

On 14 March 2012, more than three years after the beginning of the trial, the Trial Chamber decided that, despite the various flaws in the course of the trial, the prosecution had proven beyond reasonable doubt that Lubanga was guilty of conscription, enlistment and use of children under 15 years old in an armed group in order to make them participate directly in the hostilities, crimes committed in the period between early September 2002 and 13 August 2003.

It however insisted on the fact that the prosecutor should not have delegated its investigations and should have exercised a better supervision over its intermediates so as to avoid conflicts of interest and to prevent them from encouraging witnesses to give false testimonies.

On 13 June 2012, the prosecution requested a sentence of 30 years of imprisonment.

On 10 July 2012, the Trial Chamber I sentenced him to a total period of 14 years of imprisonment. The time in custody since his surrender to the ICC on 16 March 2006 will be deducted from this sentence. Judge Elizabeth Odio Benito has written a dissenting opinion indicating that the sentence disregards the damage caused to the victims and their families.

On 7 August 2012 the Trial Chamber rendered its first decision on the reparations to be awarded to participating victims. The Chamber asked the victims to submit their requests for reparations. Such requests should be assessed by a newly composed Trial Chamber I and in case – since Lubanga has been declared indigent – implemented by the Trust Fund for victims consistently with the resources at its disposal.

On 3 October 2012, Lubanga’s lawyers filed an appeal against the guilty verdict and asked for the acquittal of their client. Moreover, they also appealed against the sentence decision of 10 July 2012 in order to reduce or cancel the sentence pronounced against Lubanga. The legal representatives of the victims also appealed the judgement.

On the same day, the Prosecutor also filed an appeal against the sentence decision and asked for a sentence of 30 years in prison.

On 19 and 20 May 2014, as a result of appeals lodged by both the Defense and the Office of the Chief Prosecutor, the Appeals Chamber of the ICC held hearings to allow both of the parties and participants to have an oral discussion with the Appeals Court on various points concerning their appeals. The judges also listened to testimony from two additional witnesses.

On 1 December 2014, the Appeals Chamber, by a majority decision of the five sitting judges, confirmed the guilty verdict against Lubanga as well as that sentencing him to 14 years imprisonment.

On 3 March 2015, the Appeals Chamber delivered its decision on the issue of reparations for the victims of Lubanga.

The Appeals Chamber quashed the decision of the Trial Chamber whereby Lubanga could not be held personally liable for the collective reparations due to his current state of indigence. The Chamber specified that the Trust Fund for Victims (TFV) could advance its resources to implement the decision to the benefit of the victims, and would be able to claim back its resources from Lubanga at a later date.

At the same time, however, the Chamber confirmed that the victims of sexual and gender-based violence (SGBV) could not be included in the reparations. Indeed, the Court reaffirmed that reparation orders may only be issued against a convicted person, and only for the harm directly resulting from the offence for which the person has been convicted. As the link between Lubanga’s crimes and the harm suffered by the victims of SGBV was not proven, the latter could not benefit from reparations. Nevertheless, the Chamber recalled that the TFV could decide to compensate those victims on the basis of its discretionary assistance mandate.

Lubanga, appealed to the International Criminal Court for early release, with his defence arguing that he was eligible after serving more than two-thirds of his sentence. On 18 august, the Prosecution opposed this early release, arguing that Lubanga has not shown “early and continuing willingness” to cooperate with the Court in its investigations and prosecutions. The hearing on the matter took place on 21 August 2015.

On 15 June 2015, the Appeals Chamber reviewed Lubanga’s sentence. On 22 September 2015, the three judges of the Appeals Chamber ruled that there was no reason to reduce his sentence and the next revision of his sentence will take place in two years from the issuance of this decision.

On 24 November 2015, the ICC and the DRC finalized an ad hoc agreement, expressing the acceptance from the DRC to welcome Lubanga and Germain Katanga for the execution of their prison sentences. On 8 December 2015, the ICC presidency decided that the sentences of Katanga and Thomas Lubanga Dyilo will be served under the supervision of the ICC in the DRC, in accordance with Article 103 of the Rome Statute.

On 19 December 2015, Lubanga and Katanga left the ICC detention center in The Hague to reach Kinshasa, where they now serve their sentences.

 

spotlight

The Lubanga case is the first one on which the International Criminal Court (ICC) has to pronounce.

In April 2004, the Democratic Republic of Congo as a State Party to the Rome Statute referred the situation in its territory to the Prosecutor of the ICC, in accordance with Article 14 of the Rome Statute. The Prosecutor thus had to conduct investigations in order to determine whether one or more specific persons should be charged with crimes which fall under the jurisdiction of the Court. The Congolese authorities for their part are obliged to cooperate with the ICC. The Prosecutor had already been following the situation in the DRC, and in particular in the Ituri region, since 2003.

PARTICIPATION OF VICTIMES IN THE PROCEEDINGS

On 31 July 2006, the ICC admitted a request by three victims to participate in the proceedings against Thomas Lubanga Dyilo. The court found that there was sufficient reason to believe that the three applicants were victims of crimes committed by Thomas Lubanga Dyilo and ordered all public documents regarding the proceedings to be delivered to the legal representatives of the victims.

This decision, which allows victims to participate from the very beginning of the investigation, constitutes an important development with respect to the role of the victims of breaches of international criminal law in such proceedings. Neither the International Criminal Tribunals for Rwanda and for the former Yugoslavia, nor the Special Court for Sierra Leone allowed for such forms of participation by victims.

The proceedings against Thomas Lubanga Dyilo allow, for the very first time, the possibility for victims of international crimes to explain their views and concerns to the Court, where their personal interests are at stake.

Moreover the appeal judgement of 3 March 2015 is the very first decision in which the ICC detailed the necessary minimum elements required of a reparation order and established the general principles governing the reparations for victims.

 

context

THE FIRST CONGO WAR

After almost 40 years under the dictatorship of Mobutu, a new period of conflicts broke out in 1996 in the territory of the Democratic Republic of the Congo (DRC, formerly known as Belgian Congo, Congo-Leopoldville or Zaire), as a result of the spill-over of the civil war raging in the neighboring Rwanda. At the end of the armed conflict – involving Rwanda and Uganda – Mobutu had to abscond, and Laurent-Désiré Kabila become the new Congo’s President.

THE SECOND CONGO WAR

Already in 1998 Kabila’s alliance with Rwanda and Uganda had turned in a state of hostility. Rebel groups engaged an armed conflict against governmental forces. Due to the involvement of about 25 armed groups and eight States – Angola, Chad, Namibia and Zimbabwe supporting DRC’s government, versus Rwanda, Uganda and Burundi supporting the rebels – the war is also known as Great War of Africa.

On 18 January 2001 Laurent Kabila died for the consequences of an attempt to his life, leaving the country in his son Joseph’s hands. After various ceasefire agreements during the years, the war formally ended in 2002. The peace agreement leads to new elections, won by Joseph Kabila.

THE CONFLICTS IN NORTH KIVU, SOUTH KIVU AND IN ITURI

New armed conflicts continued however in border regions of DRC between governmental forces and rebel groups. Ethnical differences and the high amount of natural resources present in the Kivus and in Ituri are among the main causes of the hostilities. Despite the fragile peace agreements signed in 2007 (Ituri) and in 2009 (Kivus), thousands of people keep dying due to famine and devastations left by the conflicts.

INTERNATIONAL PROCEEDINGS

In 2005 the International Court of Justice recognized Uganda’s responsibility for violation of DRC territorial integrity during the Second Congo war, and for the unlawful exploitation of a consistent amount of DRC’s natural resources.

In 2005 Joseph Kabila referred DRC’s situation to the International Criminal Court (ICC), asking the Prosecutor to open investigations on crimes committed anywhere on DRC’s territory since the entry into force of the ICC Statute. To date the ICC has indicted five people for the situation in DRC. Among these, Thomas Lubanga Dyilo was the first person ever to be convicted by the ICC.

 

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