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Lubanga CaseOn 26 January 2009, the ICC opened its first trial in the case against Congolese warlord Thomas Lubanga Dyilo. Lubanga was the first person charged in the Democratic Republic of Congo (DRC) situation as well as the Court’s first detainee.
The trial marks a turning point for the Rome Statute, the ICC’s founding treaty, which entered into force only in 2002. The Lubanga proceedings will be the first test of formal victim participation in an international criminal trial. The case also highlights the gravity of recruitment, enlistment and conscription of child soldiers.
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 is accused of enlisting and conscripting children under the age of fifteen and using them to participate actively in hostilities, from September 2002 to 13 August 2003.
ARREST WARRANT AND TRANSFER
On 10 February 2006, Pre Trial Chamber I issued a warrant of arrest under seal for Lubanga. On 17 March 2006, the arrest warrant for Lubanga was publicly announced and unsealed by ICC Pre-Trial Chamber I. Due to the cooperation of DRC authorities, the French government and MONUC, Lubanga was transferred to The Hague on the same day.
The crimes for which Lubanga has been charged with are listed as war crimes under Articles 8(2)(b)(xxvi) or 8(2)(e)(vii) of the Rome Statute of the ICC.
The Prosecutor of the ICC has charged Thomas Lubanga Dyilo with the war crime of enlisting children under the age of fifteen; conscripting children under the age of fifteen; and using children under the age of fifteen to participate actively in hostilities.
On 20 March 2006, Thomas Lubanga Dyilo first appeared in Court before ICC Pre-Trial Chamber I.
PRE-TRIAL CONFIRMATION OF CHARGES
A three-week confirmation of charges hearing was held in November 2006. Four victims participated in the proceedings and were allowed to present their views and concerns.
On 29 January 2007, ICC Pre-Trial Chamber I confirmed the charges against Thomas Lubanga Dyilo, sending the case against him to trial.
The Chamber found sufficient evidence to establish substantial grounds to believe that Lubanga is criminally responsible as a co-perpetrator for the charges made against him for the period beginning September 2002, when the Force Patriotiques pour la Liberation du Congo (FPLC) was founded, and ending 13 August 2003.
FIRST STAY OF THE PROCEEDINGS AND REVIVAL OF THE TRIAL
On 13 June 2008, the Court announced a stay of the proceedings in the Lubanga case because the Prosecution was unable to make available potentially exculpatory materials. The Prosecutor had obtained the evidence in question on a confidential basis from several sources, including the UN, and these sources had refused to disclose it to the Defence and, in most cases, to the Trial Chamber. During a hearing on 24 June 2008 , Trial Chamber I stated that it would be premature to consider the release of the accused at this stage .
On 2 July 2008, Trial Chamber I issued an order granting unconditional release to Thomas Lubanga Dyilo. The Prosecution appealed the order which was given suspensive effect, meaning that the accused shall not leave detention until the Appeals Chamber has resolved the issue.
On 11 July 2008, the Prosecution requested Trial Chamber I to resume trial proceedings and to revoke the order of release of Thomas Lubanga Dyilo because of new UN procedures that would allow the Chamber to review potentially exculpatory evidence.
On 3 September 2008, ICC Trial Chamber I decided to maintain the stay of the proceedings in the Lubanga case. The decision stated that “The proposals outlined in the application demonstrably fail to meet the prerequisites set out hitherto by the Chamber to enable it to lift the stay of proceedings, and they infringe fundamental aspects of the accused's right to a fair trial”. Lubanga will however remain in custody until a final decision is taken by the ICC Appeals Chamber on the appeal of the order granting him unconditional release.
On 14 October 2008, the Prosecution decided to discontinue the first and second grounds of his Appeal against the Trial Chamber’s decision to stay the proceedings. According to the Prosecution, information providers now agree to allow complete access to all the Article 54(3)(e) documents by both the Trial Chamber and the Appeals Chamber, if necessary. This notice does not affect the third ground in that appeal, on the imposition of the stay of trial, nor does it affect the appeals from the decisions to release the accused.
On 21 October 2008, the Appeals Chamber of the International Criminal Court (ICC) rejected the appeal by the ICC Prosecutor Luis Moreno-Ocampo to revive the trial of the ICC’s first accused, Thomas Lubanga Dyilo of the Democratic Republic of Congo (DRC). However, the judges ruled in favor of the Prosecutor’s appeal to reject the release of the accused because the trial was on hold. The Appeals Chamber said the Trial Chamber was wrong to say that an inevitable consequence of a conditional stay of the trial proceedings is the unconditional and immediate release of the accused. Judges remanded the matter of the accused’s release back to the Trial Chamber for a new determination regarding the release of Lubanga, in light of their judgment and by taking into account all relevant factors, including the need for Lubanga to remain in detention according to the conditions set out in Articles 60 and 58 (1) of the Rome Statute.
On 22 October 2008 Trial Chamber I reacted to the Appeal’s Chamber’s decision, requesting the Prosecution, Defence and Legal Representatives of victims to make submissions on Lubanga’s pre-trial detention before 31 October 2008.
On 18 November 2008, Trial Chamber I of the International Criminal Court announced its decision to lift the stay of the proceedings in the Lubanga case as the reasons for imposing the stay "have fallen away". The Judges announced the trial would start on 26 January 2009. Trial Chamber I also decided not to grant the release or provisional release of Lubanga.
The Court has held multiple hearings in preparation for the Lubanga trial. With decisions on the participation of victims in the trial, on the disclosure of evidence, the redaction of documents, the role of the Office of Public Counsel for Victims, the Court has been setting key guidelines on many crucial issues.
On 26 January 2009, the ICC opened its first trial in the case against Congolese warlord Thomas Lubanga Dyilo.
The Prosecution, the Defence, the Registry and 8 Legal Representatives of Victims representing 93 victims are participating in trial hearings.
The Prosecution finished the presentation of its case in mid-July 2009.
The presentation of the Defense’s case—originally scheduled to start in October 2009—had been adjourned pending a ruling by the Appeals Chamber on the recharacterization of the facts and the addition of charges of sexual slavery and inhuman and/or cruel treatment to the existing charges. On 8 December 2009, the Appeals Chamber of the ICC reversed the Trial Chamber decision on the reclassification of the facts in the Lubanga case.
On 7 January 2010, the Lubanga trial resumed with the testimonies of two experts and three victims. The Defense then started the presentation of its evidence.
SECOND STAY OF THE PROCEEDINGS
On 8 July 2010 ICC Trial Chamber I ordered to stay the proceedings in the case The Prosecutor v. Thomas Lubanga Dyilo, considering that the fair trial of the accused was no longer possible due to non-implementation of the Chamber's orders by the Prosecution. The Chamber had ordered the Office of the Prosecutor to confidentially disclose to the Defence the identity of intermediary 143.
On 15 July 2010, ICC Trial Chamber I ordered the release of Thomas Lubanga. ICC judges argued that an accused cannot be held in preventative custody on a speculative basis, namely that at some stage in the future the proceedings may be resurrected. However, the order was not implemented with immediate effect. The Prosecution appealed the decision and the request was granted suspensive effect meaning Thomas Lubanga remained in detention until the Appeals Chamber made a final decision.
On 8 October 2010, the ICC Appeals Chamber reversed Trial Chamber I’s July 2010 decision to stay proceedings and to release the accused. Appeals judges stated that although the prosecutor did not comply with the Trial Chamber’s orders relating to protection issues, judges should first have tried applying sanctions before imposing the drastic measure of a stay of proceedings. The trial resumed but was again put on hold for 6 weeks in early 2011 due to various challenges brought by the defense, in particular regarding the disclosure of the identity of witnesses and participating victims. On 23 February 2011, Trial Chamber I rejected another defense application for a stay of proceedings and the trial resumed on 21 March 2011. On 20 May 2011, Trial Chamber I ordered the closing of the presentation phase of evidence.
END OF TRIAL PHASE
On 25 and 26 August 2011, the closing statements took place before TC I. The Prosecution and the Defence presented their final arguments. The legal representatives of victims also made statements at the final hearings. A total of 123 victims were authorized to participate during the trial. Through their legal representative, these victims expressed their position on matters heard before the chamber and were authorized to examine witnesses on specific issues. On 15 December 2011, TC I decided it will first issue the authoritative version of the judgment in English in the case, with the French translation to follow a number of weeks later.
In a public hearing on 14 March 2012, TC I delivered a guilty verdict against Lubanga. He was found guilty of having committed the war crimes of enlisting and conscripting children under the age of 15 years and using them to participate actively in hostilities in the DRC between September 2002 and August 2003. Lubanga’s defense has the right to appeal the decision. 129 victims participated in the trial through their legal representatives.
On 13 June, TC I heard aggravating and mitigating factors to determine the sentence to be imposed. The prosecutor has requested a 30 year sentence, or 20 years should Lubanga submit a genuine apology and commit to working to prevent future crimes and promote peace.
On 10 July 2012, TC I sentenced Lubanga to 14 years imprisonment. The some six years Lubanga has already served in detention in The Hague since March 2006 have been taken into account in the Chamber’s decision and will be deducted from the total sentence.
On 3 October 2012, Thomas Lubanga appealed both the guilty verdict and sentence handed down by ICC judges during his trial, 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. Meanwhile, all parties and participants, as well as the Trust Fund for Victims, submitted observations on reparations proceedings in the case.
Lubanga has requested that the ICC President Judge Sang-Hyun Song be removed from the Appeals Chamber handling the appeal against his conviction and sentencing.
REPARATIONS PRINCIPLES AND PROCESS
On 7 August 2012, TC I issued its first ever decision on the principles for victims' reparations for harm suffered as a consequence of the crimes committed by Lubanga. The judges set out what the basis would be for the reparations award, as well as what the process would look like to come to the actual award. TC I decided that the Trust Fund for Victims (TFV) will collect reparations proposals from victims, which will then be approved by the Chamber.
Lubanga is currently detained in one of the 12 ICC cells of the ‘Haaglanden Prison’, in Scheveningen in The Hague since 17 March 2006. The Scheveningen prison is located less than twenty minutes by road from the Court. The International Committee of the Red Cross visits the Detention Centre regularly. Although a number of states—including Austria, Belgium, Denmark, Finland, United Kingdom and Serbia—have declared their willingness to accept sentenced persons by the ICC, it has not yet been decided where Lubanga will serve out his sentence.