The International Criminal Court finally ruled its first conviction in the The Prosecutor v Thomas Lubanga Dyilo case. This was the first ever conviction in the ICC, since its opening ten years previously.
Lubanga was accused of enlisting and conscripting children under the age of 15 and using them to participate actively in hostilities from the period of September 2002 to 13 August 2003.
The arrest warrant for Lubanga was issued in February 2006, publicly advertised in March 2006 and the trial began in January 2009.
Lubanga was charged with war crimes under Articles 8(2)(b)(xxvi) or 8(2)(e)(vii) of the Rome Statute of the International Criminal Court:
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.
Lubanga was sentenced to 14 years imprisonment for recruiting and using child soldiers. He has been held in Haaglanden Prison, in Scheveningen in The Hague since 17 March 2006. Six years were deducted from his sentence to make up for the duration of detention since his capture.
During the first verdict it was found to be beyond reasonable doubt, from documentary evidence and testamentary witnesses, that children were enlisted. Factors that defined whether a child was a victim were established from the on set. It was noted that all the victims had a common denominator: they were exposed to danger, they were a potential target and exposed to potential risk. Since child soldiers were involved in a wide range of activities, this applied regardless of whether they were directly or indirectly taking part. Regardless of whether they were acting voluntarily or recruited by force, they could still be classified as victims.
Problems within the case
Many thought this sentence was too lenient, taking into account the vast amount of children that were forced to fight and kill. The actions the children had to undergo under the orders of Lubanga will have a lasting psychological impact on the rest of their lives. The dent that he has left on the child victims and their families runs deep and it can be rightly argued therefore that Lubanga deserves more than 14 years of imprisonment. It is questionable whether the child soldiers received enough justice from the law based on the length of the sentence. This is the same maximum penalty for the offence of causing death by dangerous driving in the UK. Comparing the two, the scale of Lubanga’s crime could be said to be more disastrous and a higher sentence is more deserved.
The trial lasted for six lengthy years. Intermediaries were used as a way of keeping in touch and maintaining the contact with witnesses during that time. The judges in the case felt that the witnesses were being pressured to alter their stories and, therefore, a total of three witnesses were rejected.
During the first verdict there was evidence from witnesses that Lubanga’s commanders used girls for sexual violence, rape and domestic abuse. Furthermore, Article 8 of the Rome Statute states that crimes related to child soldiers are defined as:
Conscripting or enlisting children under the age of fifteen years into the national armed forces or using them to participate actively in hostilities.
Child soldiers are used for a variety of reasons, and it is not only restricted to fighting, for example, girls are often used as war brides and sexual slaves.
Lubanga was never charged with sexual violence. The International Criminal Court only deals with the most serious crimes. The number of charges Lubanga faced has been criticised; many have said there were not enough, and this can be seen as a fair criticism.
Even more so, the term ‘participate actively’ is used to define child soldier crimes. It can be said that it is doubtful that the Lubanga case has set sufficient precedent for future cases. Given the severity of the crime and the physical and emotional impact it will have on the victims’ lives, there is possible grounds to state that Lubanga’s charges were too narrow.
The issue of consent was not considered by law, whether the child consented or not did not affect the victim status of a child. On 22 October 2013, Patricia Sellers delivered a lecture titled ‘International Humanitarian Law and Lubanga’s Child Soldiers–Shifting Grounds?’. Sellers raised issues of concern surrounding consent:
What if the child has ended up falling in love? There is no current jurisprudence.
Where is the bar for consent on child soldiers? Consent does not occur due to the length of time.
Where does the ICC stand?
The International Criminal Tribunal for Rwanda and the International Criminal Tribunal for the former Yugoslavia are permitted to use Chapter 7 of the United Nations Charter. This gives them rights and the responsibility to protect, whereas the International Criminal Court does not possess this right. This leaves the International Criminal Court with no option but to heavily depend on international co-operation. The International Criminal Court has not got strong international legal backing as it stands. Although, in hindsight the conviction of Lubanga is an indicator of the growing relationship for the sake of justice amongst the international community. Without a strong relationship between states, the International Criminal Court has the potential to quickly collapse and diffuse.
Even though there have been many criticisms concerning the judgments in this case, it showed that the court was now fully operational after a slow start. The case symbolises to the international community that every man, no matter how powerful, is not immune from accountability.
Now that the International Criminal Court is fully operational, there is a lot more pressure within the international community to prosecute the Syrian President Bashar al-Assad for war crimes. The only problem is that Syria is not a state party to the Rome Statute. Therefore, the International Criminal Court holds no jurisdiction to summon the capture of President Bashar al-Assad. The option that remains is for the United Nations Security Council to refer the case.
This current situation highlights the limitation of the International Criminal Court and demonstrates the immaturity of the International Criminal Court at the moment. The court is still at the beginning of it’s time; it has a lot more cases to deal with and still has a long way to go.