Detailed Analysis of the Lubanga Case in International Criminal Law

This case study analyzes The Prosecutor v. Thomas Lubanga Dyilo (ICC-01/04-01/06), examining the procedural history, facts, issues, decisions, reasoning, separate opinions, and overall analysis of the case. The case focuses on Thomas Lubanga's alleged war crimes, including the recruitment and use of child soldiers in the Democratic Republic of Congo. The analysis delves into the ICC's findings, including the conviction of Lubanga under the Rome Statute for enlisting children under 15, the reasoning behind the court's decisions, and the dissenting opinions. It explores the gravity of the crimes, the involvement of children in hostilities, and the court's consideration of sexual violence. The analysis also covers the legal standards applied, the concept of active involvement, and the implications of the case for international criminal law and the protection of children in armed conflict. The case highlights the ICC's role as a court of last resort and the importance of holding individuals accountable for war crimes.

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LUBANGA CASE
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Lubanga Case
Title and Citation
Lubanga Case: The Prosecutor v. Thomas Lubanga Dyilo ICC-01/04-01/06.
Procedural History
In 2004, the head of state of Democratic Republic of Congo (DRC) referred the state
ICC through the prosecutor that was taking place in the country to the International Criminal
Court (ICC). In 2006, requested a warrant of arrest against Mr. Lubanga for committing war
crimes, including enlisting, plus recruiting young children below the ages of 15 years in addition
to exploiting them to take part in war crimes as associates of the armed group. On March 16,
2006, Lubanga was transferred to the International Criminal Court and charges were established
on January 29, 2007, whereby trial started in 2009 and the verdict was delivered by the ICC on
March 14, 2012 (Diane, 2013, pp. 411).
Facts of the Case
The armed clash in DRC was due to the conflicts among different ethnic groups in their
endeavour to acquire power in addition to territory, specifically over the Ituri region. This region
is wealthy in natural resources, like gold, as well as diamonds. Thus, one such armed group was
the Union Patriotique des Congolais (UPC) that was formed in 2000 in addition to Libunga was
chosen as the chairman plus Commander-in-Chief of the armed group. The case against Mr.
Thomas Lubanga was due to the investigation by the ICC into the condition in DRC) and the
supposed crimes that were committed in the nation since July 1, 2002 (Sivakumaran, 2011, pp.
240). The ICC prosecutor requested an arrest of a warrant against Mr. Lubanga was indicted at

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ICC with the war crimes comprising enlisting, as well as recruiting of children below the age of
fifteen years into the UPC exploiting them to take part activities in the war crimes amid 2002 and
2003. He was alleged to be the former president of the mainly Hema ethnicity and believed to the
Commander-in-Chief of its militia. Thus, the charges against Lubanga on gender-based criminal
acts were not integrated into the case in spite of the accessibility of many documents from the
United Nations (UN) and NGO reports. Mr. Lubanga was arrested plus surrendered to the ICC
on March 16, 2006, where his trial started in 2009 and made his original appearance before the
ICC on March 20, 2006 (Clapham & Gaeta, 2014, pp. 71). The charges against Mr. Thomas
Lubanga were confirmed by the court on January 29, 2007, after numerous postponements. The
prosecution at ICC was alleged to have actively conscripted children below 15 years, subjected
these children to armed training, as well as consequently exploited these children to take part in
hostilities, comprising as bodyguards for military officers. He further accused of exercising de
facto authority within the UPC, as well as the FPLC and to have the decisive rule over the
espousal along with the execution of their policies; thus, Mr. Lubanga was charged with
unlawful responsibility as co-perpetrator, together with some UPC/FPLC officials plus members
during that time (Alexander, 2015, pp. 109).
Issues
In 1997, when President Kabila ascended to power in Zaire, he branded the nation to
DRC. Hence, by the moment of his murder in 2001, over 10 wars devastated the region, with the
mainstream occurring in Ituri province. The ICC (Fatou Bensouda) stated that the evidence had
confirmed that it was not just past reasonable uncertainty, but further than any probable doubt
that Lubanga was guilty of the war crimes charged touching him by means of having

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methodically conscripted kids under than age of fifteen years as soldiers in his political wing
called UPC/FPLC. The evidence before the court showed that Lubanga exploited the children in
the hostilities in DRC between September 2002 and August 2003. Bensouda claimed that the
Chamber has made sure that the accused had attained fair trial in every proceeding, and asked the
Chamber to sentence him for the charge of the war crimes. The conviction as argued by the
prosecutor was meant to send an understandable message that there would be no impunity for
those who enlist and exploit children. The video that was prominent in the case was the one
showing Lubanga at Rwampara, movement training camp, in his duty as highest commander of
the militia talking to the recruited soldiers telling them it was the second he came to the camp.
The prosecution at the court claimed that the statement by Lubanga demonstrated that managing
his armies was a normal and common action for him plus that the video before the court was a
deliberate, public and recorded admission of Lubanga’s war crimes. The prosecutor described the
cruel everyday training camp life of the youngster armies who were harassed, learned the way to
kill and fights, and usually live in regular panic. The evidence also showed that the girls recruited
with the boys in the camp were subjected to rape and assault where they served as sex slaves to
Mr. Lubanga’s commanders and were compelled to be “wives” of the commanders in the
training camp (Boothby, 2010, pp. 741).
Decisions (Holdings)
A trial lawyer for the prosecution, Nicole Samson stated in his submission that the
recruitment occurred across the extensive region of UPC-controlled region between 2002 and
2003, as well as was a portion of the intentional and apparently executed plan. Consequently, the
prosecution claimed that the majority of the children military were the victims of coercive

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enrolment campaigns or their parents were compelled to surrender their kids. The children were
enlisted, abducted, as well as trained to be ready to take patty aggressively in hostilities.
Reasoning
The original decisions in 2012 in the Lubanga trilogy was the verdict issued founded on
the provisions of Article 74 of the Rome Statute. Mr. Lubanga was charged under the provisions
of the Rome Statute concerning an individual who commits an offence within the rule of the
International Criminal Court. A chamber popular ruled that the Prosecutor in the case had
confirmed the subsistence in Ituri province of an internal; however, not an intercontinental armed
conflict (Mariniello, 2012, pp. 146). Pre-Trial Chamber I maintained that the prosecution had
shown beyond a reasonable uncertainty the Lubanga’s role both for the violent plus non-forcible
conscription of children into a military group in addition to the exploitation of the children in
many prohibited roles within the militia. A video showed Mr. Thomas Lubanga being
surrounded by juvenile children who were working as bodyguards and the children in question
were underage (Graf, 2012, pp. 964).
The ICC verified the charges touching Mr. Lubanga on January 29, 2007, establishing
that there was adequate evidence to show that considerable premises to consider that he was
liable, as a co-perpetrator under the provisions of Article 25(3)(a) of the ICC statute, for the war
crimes of enrolling kids under the age of 15 years. Lubanga was found guilty under Articles 8(2)
(b)(xxvi), (e)(vii), as well as 25(3)(a) of the ICC (Byron, 2009, pp. 36). The reasoning by the
ICC on the case was that the recruitment and enlistment of kids below fifteen years is a crime of
nonstop nature that was committed provided the child stays in the armed group or is juvenile.
The crimes that were committed entail all the actions endured by the children in the training plus

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in the time they were compelled to be a combatant. The court also argued that the girls
compelled into matrimony with the commanders in the training camp are not the wives of the
commanders, except these girls were victims of conscription, and must be specifically
safeguarded by disbandment programs and by the International Criminal Court (Barstad, 2008,
pp. 148).
In addition, the court provided evidence through the trial lawyer for the prosecution,
Manoj Sachdeva that proved the knowledge, intent and individual criminal liability of Mr.
Thomas Lubanga. The lawyer claimed that Mr. Lubanga was the president and commander-in-
chield of the UPC and undertakes the final decisions, as well as managed the strategy and policy
of the hierarchy of the UPC/FPLC plus its military wing. Therefore, it was clear that had
fundamental input to the commission of the war crimes charged as stipulated in Article 25(3) (a)
of ICC statute. Accordingly, the prosecution team claims that the war crimes were executed by
Mr. Lubanga’s direct knowledge and intention and he the power to order the cessation of the
crime in the region (Ambos, 2012, pp. 115).
Separate Opinions
In the lack of consensus between the Prosecution judges, a chamber can adopt its
decision by the majority. A judge who does not agree with the majority may attach dissenting or
partly dissenting opinion. A dissenting opinion sets out the position of the dissenting judge;
however, has no legitimate authority. In this case, Judge Odio Benito had a dissenting opinion on
Lubanga’s case. Accordingly, the judge argued that regardless of compliances on sexual violence
being integrated in the trial concluding briefs and concluding arguments, the charges of sexual
aggression had not been contained in the documents that contained charges or incorporated in the

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charges that were affirmed by the Pre-Trial Chamber I. Benito was critical about the weight of
the sexual violence in the case and that this should be a basis to make the decision on the case
(Bader, Coursen-Neff & Hassan, 2012, pp. 26).
Analysis
This particular case was established to fall in the ICC’s authority by the Pre-Trial
Chamber I, as the supposed behaviour was a crime under the ICC rule and occurred after July
2002, in the area if Ituri in the province of the DRC, a party to the ICC. The ICC is a court of
final resort and, thus, cases are only permissible in which the country is not willing or powerless
to authentically perform the investigation or trial (Kane & Zheng, 2012, pp. 28). The Lubanga’s
case was considered by the Pre-Trial Chamber I to be acceptable to ICC because of the fact that
though DRC had a functional court system and Mr. Lubanga had been jailed for many charges,
nationalized court case did not include the behaviour alleged by the ICC prosecutor. In addition,
this particular case was established to meet the “gravity threshold” needed by the ICC given the
“social harm” due to the crimes because of the influence and position of Lubanga at UPC
(Borda, 2013, pp. 7).
The prosecution, in this case, contended that Mr. Thomas Lubanga was the general leader
of the UPC/FPLC; plus that he visited along with inspected UPC/FPLC training camps,
supervised the behaviour of the military associations, as well as selected the superior ranks in the
FPLC, sourced for funding for the organization and bargained the supply of weapons, as well as
other military resources including equipment (Ambos, 2012, pp. 116).

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Though enlisting, conscripting, as well as using children soldiers in war are distinctive
crimes under the ICC statute, in the situations of the current case, recruitment and mobilization
were handled together by the Court. The crime was executed at the time a child below fifteen
years is recruited or joints an armed faction, with or with no coercion (Kurth, 2013, pp. 440).
Thus, approval is not a legitimate defence; however, the way where the child was enlisted into an
armed group-whether voluntary or with compulsion-can be considered at the time of conviction.
Addition, active involvement is an extensive concept, which incorporates different actions than
the idea of direct involvement based on international humanitarian law. Hence, active
involvement comprises direct plus indirect involvement: the decisive element is whether the
support offered by the kid exposed him/her to actual risk as a possible target (Hayes, 2012, pp.
123). In this case, the majority declined to believe whether sexual aggression touching
youngsters may be excluded in the compass of exploiting children to aggressively take part in the
hostilities because of the letdown of the ICC Prosecution to take in the charges against Lubanga
and the Trial along with Appeals Chamber’s verdicts not to modify the legal characterization of
the evidence to comprise criminal acts linked to sexual aggression (Jenks, 2013, pp. 106).

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References
Alexander, A. (2015). ‘A Short History of International Humanitarian Law’. European Journal
of International Law, Vol. 26. Iss.1. p. 109.
Ambos, K. (2012). ‘The First Judgment of the International Criminal Court (Prosecutor v.
Lubanga): A Comprehensive Analysis of Legal Issues’, International Criminal Law Review, Vol.
12. Iss. 1. pp. 115-117.
Bader, L, Coursen-Neff, Z & Hassan, T (2012). No Place for Children: Child Recruitment,
Forced Marriage, and Attacks on Schools in Somalia. HRW.
Barstad, K. (2008). ‘Preventing the Recruitment of Child Soldiers: The ICRC Approach’.
Refugee Survey Quarterly. Vol. 27. Iss. 2. P. 148.
Boothby, B. (2010). ‘And for Such Time as: The Time Dimension to Direct Participation in
Hostilities’. New York University Journal of International Law and Politics. Vol. 42. Iss. 3. p.
741.
Borda, A. (2013). ‘The Direct and Indirect Approaches to Precedent in International Criminal
Courts and Tribunals’. Melbourne Journal of International Law. Vol. 14. Iss. 2. p. 7.
Byron, C. (2009). War Crimes and Crimes against Humanity in the Rome Statute of the
International Criminal Court. Manchester University Press.
Clapham, A & Gaeta, P. (2014). The Oxford Handbook of International Law in Armed Conflict.
OUP.

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Cronin-Furman, K (2013). ‘Managing Expectations: International Criminal Trials and the
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Graf, R. (2012). ‘The International Criminal Court and Child Soldiers’. Journal of International
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International Criminal Law: Critical Perspectives.
Jenks, C. (2013). ‘Law as Shield, Law as Sword: The ICC’s Lubanga Decision, Child Soldiers
and the Perverse Mutualism of Direct Participation in Hostilities’. University of Miami National
Security and Armed Conflict Law Review. Vol. 3. Iss. 1. pp. 106-129.
Kane, M & Zheng, A. (2012). ‘The Lubanga Verdict: A Milestone for International Criminal
Law in Central Africa and around the World’. ABA International Law News. Vol. 41. Iss. pp. 28.
Kurth, M.E. (2013). ‘The Lubanga Case of the International Criminal Court: A Critical Analysis
of the Trial Chamber’s Findings on Issues of Active Use, Age, and Gravity’. Goettingen Journal
of International Law. Vol. 5. Iss. 1. p. 440.

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Mariniello, T. (2012). ‘Prosecutor v Thomas Lubanga Dyilo: The First Judgment of the
International Criminal Court’s Trial Chamber’. International Human Rights Law Review,Vol. 7.
Iss. p. 146.
Sivakumaran, S. (2011). ‘Re-envisaging the International Law of Internal Armed Conflict’.
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