Human Rights in Ireland is delighted to welcome this guest post from Julie McBride. Julie is a PhD Candidate at Queen’s University Belfast, researching the development of the war crime of child soldier recruitment in international criminal law, and a member of the United Nations Global Experts, specialising in international crime and transitional jus
In the same week as Kony 2012 broke viral video records and the issue of child soldiers became the ‘cause du jour’, the International Criminal Court handed down its first judgment, in a case that had focused solely on the issue. At the end of an epic three-year trial that had suffered frequent delays and interruptions, Thomas Lubanga of the Democratic Republic of the Congo (DRC) was found guilty of recruiting children for use in armed conflict.
Lubanga’s crimes took place during a tribal conflict between the Hema and Lendu in the eastern district of Ituri that took place between 2000 and 2003. The conflict was exacerbated by the involvement of the Ugandan army and by the attractive presence of a variety of rich mineral deposits in the region. Lubanga admitted being the founding president of the Union of the Congolese Patriots (UPC), a Hema political party, but denied leading its military wing, the FPLC. However, Prosecutors at the ICC argued that he had played a military role with the aim of maintaining and expanding his control over Ituri and its gold reserves. Lubanga was arrested in 2005 by Congolese authorities on charges of genocide and crimes against humanity, as well as the murder of nine Bangladeshi UN peacekeepers.
Human Rights Watch estimated that 3.3 million civilians died during the violence in the DRC, ‘a toll that makes this war more deadly to civilians than any other since World War II’, yet once the ICC became involved, at the request of the DRC President, the charges changed to child soldiers. The reasoning behind this was never fully explained, but the Office of the Prosecutor (OTP) claimed that focused investigations would limit the length of trials. Yet the Lubanga trial was anything but limited in length – after numerous delays, the trial eventually began on 26 January 2009 and closing arguments were heard last August – and the real reasoning behind the narrow charges would appear to stem from a mistaken belief that this case would be a ‘slam dunk’ for the prosecution. Fatou Bensouda, the then-Deputy Prosecutor and now incumbent-Prosecutor, explained in an interview in 2009 that the prosecution had decided to proceed with the sole charge on the basis that their ‘child soldier case was very strong… and this was evidence that we could present comfortably before the court’. The prosecution had procured a number of videos depicting Lubanga in training camps in the presence of uniformed children, and giving speeches encouraging their participation. This was indeed quite damming evidence, yet witnesses would also be required to prove the charges, and that is where things got tricky for Luis Moreno-Ocampo, the ICC’s Chief Prosecutor. To procure witnesses in the DRC, the OTP used several ‘intermediaries’; individuals connected to local NGOs who would assist the investigation by sourcing former child combatants and communicating with them and their families. However, a disproportionate amount of faith was placed in certain of these individuals, and it later emerged that several witnesses had been bribed and their testimonies were false. In Wednesday’s judgment, the Trial Chamber noted its concern as to the OTP’s ‘lack of proper oversight’ in their dealings with such individuals, and ruled that the OTP ‘should not have delegated its investigative responsibilities’. As a result, the testimony of a number of witnesses was disregarded because they were considered unreliable or dishonest. While this naturally damages the reputation of the OTP and will lead it to rethink its investigatory strategy, it also has the unfortunate effect of tainting the involvement of victims. The Lubanga trial was the first occasion that victims could participate at an international criminal trial, and a total of 129 victims availed of this opportunity by submitting observations via seven legal representatives. Three such victims also testified before the Chamber, but, as a result of the intermediary issue, the entirety of their testimony was disregarded due to concerns as to their reliability. This casts a shadow on what ought to have been a momentous occasion in the development of the international justice model, and further highlights the need for greater victim screening by the ICC.
In addition to the intermediary debacle, on two occasions during the trial the Trial Chamber had ordered Lubanga’s release on the basis that a fair trial was no longer possible, but on both occasions eleventh-hour decisions by the Appeals Chamber kept Lubanga in custody and allowed the trial to proceed to its conclusion on Wednesday. The unanimous verdict found that in 2002 and 2003 Lubanga had coordinated the recruiting of child soldiers and forced some of them to serve in militia roles, including as his personal bodyguards.
The judgment built upon the jurisprudence of the Special Court for Sierra Leone (SCSL) in finding that the crime of using child soldiers is committed as soon as a child joins an armed group; an action which can occur ‘with or without compulsion’. This has the effect of creating a high threshold for accountability and removes any attempt to justify using child soldiers on the basis that they ‘volunteered’. The judgment also followed the precedent set by the SCSL on the question of indirect involvement. In 2007 the SCSL had ruled that children playing a so-called ‘indirect role’ in a conflict – such as a porter, spy, courier, scout etc. – must also be considered child soldiers. The Lubanga judgment has gone one step further, and created a test for determining active participation. The question to be answered is whether a child has been exposed to ‘real danger as a potential target’. Once this risk is deemed sufficient, then a child is regarded as having participated actively in hostilities even if they were distant from the front line of the conflict.
In terms of defining liability, the prosecution chose the co-perpetration mode of liability outlined in Article 25 of the Rome Statute when formulating the charges against Lubanga. In order for a perpetrator to be held liable, it must be demonstrated that the role he played in a common plan to commit the war crimes was ‘essential’. The judgment found this to be the case, ruling that Lubanga ‘was essential to a common plan to conscript and enlist girls and boys below the age of 15’. This essential role was demonstrated by his active support for recruitment initiatives by giving speeches to the local population and the recruits, and his personal use of child soldiers as bodyguards. In addition he planned military operations and provided logistical support and weapons to the FPLC troops.
The parties to the trial have 30 days to appeal the verdict once the judgment has been translated into French. Separate hearings will be held to decide on the sentence for Thomas Lubanga. Due to the significant delays in the proceedings, Lubanga may be given time served (he has been in custody for seven years, the first of which was in the DRC), or an additional sentence of between ten and fifteen years. However, the Prosecutor announced at a press conference on Thursday that he is seeking a sentence closer to the maximum of thirty years.
Reactions to the verdict on the ground in Ituri were decidedly mixed, exacerbated by a failure by the ICC to organize a public viewing of the verdict, as it had done at previous stages in the trial. UPC supporters view Lubanga as a war hero who came to the defence of the embattled Hema, and see the court as a political institution that doles out justice only against Africans. Others in Ituri regard Lubanga as a “small fish” who was prosecuted due to international concerns, rather than the needs of the local community, while those with more blood on their hands remain free. That Lubanga’s co-accused, Bosco Ntaganda, lives without fear of arrest as an army general in the DRC only serves to underline these concerns. Unsurprisingly, NGOs and international activists reacted positively to the ruling, praising the court for sending a strong message on combating impunity. Human Rights Watch Executive Director Kenneth Roth hailed it as ‘a victory for the thousands of children forced to fight in Congo’s brutal wars’, and Amnesty International’s Michael Bochenek said that the ruling will ‘give pause to those around the world who commit the horrific crime of using and abusing children both on and off the battlefield’. Special Representative of the Secretary-General for Children and Armed Conflict, Radhika Coomaraswamy said ‘in this age of global media, today’s verdict will reach warlords and commanders across the world and serve as a strong deterrent’. The deterrent capacity of any criminal case is difficult to determine, but the effect of this judgment on increasing the stigma attached to child soldier use is hard to dispute. How that will translate to a broader respect for the work of the ICC and a break in the so-called ‘cycle of impunity’ in relation to other serious international crimes is harder to predict.