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The ICC, Responsibility to Protect and the Guilty Verdict of Thomas Lubanga
International Coalition for the Responsibility to Protect
14 March 2012
On March 14, 2012 the International Criminal Court (ICC) delivered its first verdict in the landmark trial of ‘Prosecutor vs. Thomas Lubanga Dyilo’. Thomas Lubanga, former President of the Union des patriotes Congolese (Union of Congolese Patriots or UPC) and Commander-in-Chief and political leader of UPC’s military wing FPLC, was found guilty of committing war crimes – in particular the enlisting and conscription of children as soldiers - in the Democratic Republic of Congo between September 2002 and August 2003. In a press release following the verdict, UN Special Representative of the Secretary-General for Children and Armed Conflict Radhika Coomaraswamy said the decision “will reach warlords and commanders across the world and serve as a strong deterrent”. Civil society, including Amnesty International and the Coalition for the ICC issued strong statements in support of the ruling; Human Rights Watch highlighted the importance of continuing the work of the court by ensuring others such as Lubanga’s co-accused Bosco Ntaganda, a general in the Congolese army, are arrested and brought to justice. Under the framework of the Responsibility to Protect, the International Criminal Court serves as an important tool available to the international community, ensuring perpetrators of mass atrocity crimes are held accountable and contributing to the deterrence and prevention of these crimes altogether.
ICRtoP have compiled a round-up of documents on the Lubanga trial, which provide a background, reaction and analysis to the verdict, as well as a look at the relationship between the ICC and RtoP.
Coalition for the International Criminal Court
14 March 2012
Trial Chamber I of the International Criminal Court (ICC)—the world’s first permanent international court to prosecute war crimes, crimes against humanity and genocide—today delivered a guilty verdict in the Court’s first landmark trial, The Prosecutor Vs. Thomas Lubanga Dyilo. Lubanga’s defense, however, has the right to appeal today’s decision.
Thomas Lubanga, a national of the Democratic Republic of Congo (DRC), 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.
Sentencing is to take place on another date so that any additional evidence or information that might impact upon its duration can be taken into consideration by the judges. The time that Lubanga has already served in detention will also be taken into account.

“Depending on whether an appeal is made and on its outcome, today’s decision should be remembered as a critical turning point in the fight against impunity for the most serious crimes known to humankind,” said William R. Pace, Convenor of the Coalition for the International Criminal Court—a global network of more than 2,500 civil society organizations in 150 countries advocating for a fair, effective and independent ICC and improved access to justice for victims of genocide, war crimes and crimes against humanity. (…) “Moreover, the continued prosecution of the crime of using child soldiers—of which this case forms a vital part—is having a real impact on government policy worldwide.” (…)
(…) The Lubanga trial is a milestone for the Rome Statute—the ICC’s founding treaty—which entered into force only ten years ago. The Lubanga case is one of the few international criminal cases in history to charge an individual with acts of enlistment and conscription of child soldiers. As such, the trial has done much to highlight the gravity of the crime of using child soldiers and has helped to bring the issue into international focus. During the proceedings, ten former child soldiers testified, as did a number of expert witnesses.
The trial is also noteworthy as the first instance of victim participation in an international criminal trial, with a total of 129 victims authorized by judges to participate through seven legal representatives. Reparations to victims for harms suffered may now be ordered by the ICC judges, which would be another groundbreaking first in international criminal jurisdictions.
“The DRC Coalition for the ICC warmly welcomes today’s conviction of Thomas Lubanga Dyilo," said André Kito, coordinator of the DRC Coalition for the ICC. “Victims and civil society in the DRC are celebrating the victory of justice and the promotion of human dignity,” he stated. (…)
Some 5.4 million people have died in the DRC since August 1998, making the conflict one of the world’s deadliest since World War II. For many years, victims and civil society in the DRC have demanded accountability. The opening of the Lubanga trial was considered a huge step forward for justice, but there is still a long way to go until peace is achieved in the country. (…)
To read the full press release, see here.
To view the press conference held by the Coalition for the ICC, see here.
Human Rights Watch
March 14, 2012
The International Criminal Court’s (ICC) guilty verdict against rebel leader Thomas Lubanga Dyilo for recruiting and using child soldiers in hostilities is a first step in bringing justice to the tens of thousands of children forced to fight in conflicts, in the Democratic Republic of the Congo (DRC) and elsewhere, Human Rights Watch said today. The verdict highlights the need to urgently arrest Lubanga’s co-accused, Bosco Ntaganda, who is currently a general in the Congo army in Goma, eastern Congo, and continues to evade justice. (…)

(…) The ICC judges found Lubanga guilty “beyond reasonable doubt” of the war crimes of conscripting, enlisting, and actively using children under the age of 15 in hostilities in the Ituri district during 2002 and 2003. (…)

(…) Hearings will be scheduled in the coming weeks to determine Lubanga’s sentence and reparations for victims. The court should take all necessary steps to ensure that affected communities in the DRC learn about the judgment and next steps, Human Rights Watch said.
The judgment also included sharp criticism of how the Office of the Prosecutor conducted its first case. The judges noted the prosecution’s failure to verify its evidence carefully, which led to the discrediting of several witnesses. The judges also discussed the role of “intermediaries” – individuals who assist the Office of the Prosecutor to contact victims and witnesses – which was scrutinized during the trial amid defense claims that some of them may have coached and bribed witnesses to lie. (…)
(…) The Lubanga trial has contributed to raising awareness about the plight of children forced to go to war. Children were so prevalent in Lubanga’s Union of Congolese Patriots that the force was known as “an army of children.” All parties to DRC’s war in Ituri used children as soldiers. Children are still in the ranks of armed groups and the Congolese army, and in some areas of Congo children are being actively recruited, including by force.
Many of these children are involved in armed combat either in the Kivu provinces of eastern Congo or in northern Congo, including by the Lord’s Resistance Army (LRA), a Ugandan rebel group. Joseph Kony, the leader of the LRA and his lieutenant, Okot Odhiambo, are also wanted on arrest warrants by the ICC for abducting children and forcing them to participate in the hostilities in northern Uganda, among other crimes.  (…)
(…) Worldwide, children participate in armed conflict in at least 15 countries. In addition to Lubanga, six other people have been charged by the ICC with the crime of recruiting and using child soldiers.
(…) The trial of Lubanga is the first case to reach the judgment phase at the ICC. The court began operations in 2003. Two other trials, in relation to the Congo and the Central African Republic, are under way and charges have been confirmed in two more cases.
Issues Raised in the First ICC Trial

As the first trial at the ICC, the Lubanga case broke new ground in interpreting the court’s treaty and procedures. This was the first international trial in which victims were allowed to participate in court proceedings beyond the role of witnesses – an important innovation under the ICC treaty. Victim participants made a positive contribution in this trial, but this first experience provided lessons for future trials, Human Rights Watch said. (…)

(…) There were a number of hitches in the trial, and many observers and victims expressed concern that the trial took too long. The ICC has come under increasing pressure from member countries to improve its efficiency.

Lessons learned from the Lubanga trial – taking into account its unique character as the court’s first trial – should be carefully considered by court officials, Human Rights Watch said. Other trials under way at the ICC are already running more smoothly.

To read the full article, see here
International Refugee Rights Initiative
12 March 2012
‘Steps Towards Justice, Frustrated Hopes’ is the second in a series of papers developed by ICRtoP member International Refugee Rights Initiative (IRRI), in collaboration with local partners in Africa, to reflect local perspectives on experiences with international justice. The paper aims to open a dialogue on the successes and failures of the international justice experiment in Africa, and develop recommendations for a more productive and effective engagement going forward.
On 14 March 2012, the International Criminal Court (ICC) will hand down its first verdict in the case of former rebel leader Thomas Lubanga of the Democratic Republic of Congo (DRC). As Iturians anxiously await the verdict, it is an opportune moment to reflect on the impact that the investigation and trial, alongside other activities of the ICC, have had in Lubanga’s native Ituri district.
In an effort to bring the voices and concerns of Iturians to the fore in this reflection, the International Refugee Rights Initiative and our Iturian partner organization, the Association pour la promotion et la défense de la dignité des victims (APRODIVI), today launched a report “Steps Towards Justice, Frustrated Hopes: Some Reflections on the Experience of the International Criminal Court in Ituri”. (…)
(…) The region of Ituri in eastern Democratic Republic of Congo (DRC) has been one of the most heavily conflict-affected regions in the country over the last two decades. Violence in the DRC over this time has revolved around two national wars that have pitted numerous rebel groups and international actors against each other in a vicious struggle for resources, political control and security. In Ituri, these national dynamics have intersected with, and exacerbated, tensions between the Hema and Lendu ethnic groups who live in the region. (…)
(…) For many in the DRC the intervention of the ICC offered significant hope. Impunity had been seen as a major obstacle to peace and democratic governance. (…) DRC civil society advocates saw the ICC as a useful tool in the larger battle to end impunity, and their advocacy was reportedly instrumental in ensuring that the situation in eastern DRC was ultimately referred to the ICC. (…)
(…) Following the referral, the Court began its investigations in Ituri. The investigation quickly focused on the leaders of ethnically aligned militias who were both fighting each other and participating in the broader national conflict.
Eight years later, and with the first trials winding to a close, it is an opportune moment to reflect on the Court’s involvement in the region and compare its impact to the aspirations and expectations that were raised by its initial engagement.
The proceedings at the Hague have garnered significant attention, both within Ituri and at the international level, and have generally been welcomed as part of the broader international fight against impunity. But how are these proceedings perceived on the ground in Ituri? Has the promise of an end to impunity and to a peaceful future for those in Ituri been delivered?
As the population in Ituri awaits the first trial judgement in the case of Thomas Lubanga, this paper offers some reflections on these questions, focusing on the views and opinions of those on the ground, those who have been closest to the violence. (…)
To read the press release, see here.
To read the full report, see here.
ICRtoP Blog
14 March 2012
This ICRtoP blog post reflects on the country cases of Libya and the Côte d’Ivoire with regards to the International Criminal Court as a measure under the third pillar of RtoP; whether justice for victims of atrocity crimes can be pursued while attempting to secure a peaceful resolution to a conflict and vice versa (commonly known as the peace vs. justice debate); and the contribution the ICC can play in prevention and deterrence of mass atrocity crimes.
The International Criminal Court (ICC) has delivered its first ever verdict with a finding of guilty in the case of the Prosecutor vs. Thomas Lubanga Dyilo on 14 March 2012. In light of this, and with the ICC playing differing but integral roles in responding to mass atrocities in recent situations like Libya and Côte d’Ivoire, we would like to expand on the relationship between the Responsibility to Protect (RtoP) and the ICC. In this effort, we asked several ICRtoP member organizations (…) to provide their reflections on the relationship.
The Responsibility to Protect (RtoP) and the International Criminal Court (ICC) are two interconnected initiatives that seek to ensure that the world responds to mass atrocities and holds perpetrators of these egregious crimes accountable. At their core, however, the RtoP and the ICC are complementary in seeking to prevent these crimes from occurring altogether.
Both the RtoP and ICC articulate the primary responsibilities of states. The Rome Statute of the ICC provides that it is the primary responsibility of national authorities to investigate and prosecute individuals responsible for the commission of genocide, war crimes and crimes against humanity.
George Kegoro, Executive Director of the Kenya Section - International Commission of Jurists, explains this further: “The ICC is a ‘court of last resort’ – that is, its mandate is to prosecute only when domestic avenues have been exhausted, and where a State is unable or unwilling to prosecute those individuals responsible for the gravest of crimes.” (…)
(…) RtoP and the ICC are also complementary in instances where states are found both unable and unwilling to meet their responsibilities. The Rome Statute provides that when a state does not meet its primary obligations to prosecute individuals responsible for the commission of Statute crimes, it will ensure situations are investigated, warrants are issued, and those in its custody are prosecuted.
Similarly, when a state is found unable and unwilling to uphold its responsibility to protect civilians, the norm provides that the responsibility to protect those civilians yields to the UN and its Member States in cooperation with regional organizations. (…)
To read the full blog post, see here.

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