International Criminal Court: Landmark ICC Ruling Finds Congo Militia

Leader Guilty
(Apr. 11, 2012) The International Criminal Court (ICC), established in July 2002, issued
its first decision on March 14, 2012. In the landmark case, The Prosecutor v. Thomas
Lubanga Dyilo, the three-judge panel comprising Trial Chamber I found military leader
Lubanga guilty of war crimes in the Democratic Republic of Congo (DRC). (Dan
Taglioli, Congo Militia Leader Found Guilty in Landmark First ICC Verdict, PAPER
CHASE NEWSBURST (Mar. 14, 2012).)
Lubanga was convicted on one count of the crimes of conscripting and enlisting
children under the age of fifteen years into the FPLC [Force Patriotique pour la
Liberation du Congo] and using them to participate actively in hostilities within the
meaning of Articles 8(2)(e)(vii) and 25(3)(a) of the [Rome] Statute from early
September 2002 to 13 August 2003. (Situation in the Democratic Republic of the
Congo in the Case of the Prosecutor v. Thomas Lubanga Dyil, ICC-01/04-01/06, 1358
[hereinafter Judgment].) Article 8(2)(e)(vii) of the Rome Statute is on child conscription
as a war crime; article 25(3)(a) relates to individual criminal responsibility, be the crime
committed as an individual, jointly with another person, or through another person.
(Rome Statute of the International Criminal Court (July 17, 1998; in force on July 1,
2002).)
The DRC became a State Party to the Rome Statute, the treaty on the basis of which the
ICC was founded, on April 11, 2002; pursuant to article 14, DRC President Joseph
Kabila referred the situation in his country to the ICC prosecutor in March 2004.
(Judgment, supra, 9, citing to the Decision Assigning the Situation in the Democratic
Republic of Congo to Pre-Trial Chamber I, ICC-01/04-1 (July 5, 2004) (notified on July
6, 2004), at 4.)
The ICC proceedings began in February 2006, with the ICC's issuance of an arrest
warrant for Lubanga, but they were suspended twice for reasons related to due process.
In addition, during the pre-trial phase as well as at trial, the judges prohibited witness
proofing, in a reversal of the procedural approach taken by other international tribunals,
a move which may have contributed to the first witness in the case to initially seek to
retract his testimony on the stand. (Alison Cole & Kelly Askin, Thomas Lubanga: War
Crimes Conviction in the First Case at the International Criminal Court, 16:12
INSIGHTS (Mar. 27, 2012).)
The case involves events that occurred in Ituri, a district in Orientale Province in the
DRC's northeastern region, bordering Uganda. Ethnic tensions and competition for
resources there escalated into intense conflict beginning in 1999, between two of the
many ethnic groups in Ituri, the Hema and the Lendu; from 1999 to mid-2003, there
was a struggle for political power in Ituri among a series of opposing rebel faction
leaders. (Judgment, supra, 67, 75, & 76.) According to the prosecution, Lubanga, said
to be concurrently President of the Union of Congolese Patriots (UPC) and Commanderin-Chief of the FPLC (the military wing of the UPC), directed the UPC/FPLC conquest of
Ituri during the period September 2002 to August 2003. (Id. 27-28.)
The Trial Chamber was satisfied beyond reasonable doubt that:

[as] a result of the implementation of the plan to build an army to gain political
and military control over Ituri, boys and girls under the age of 15 were conscripted and
enlisted into the UPC/FPLC between 1 September 2002 and 13 August 2003, and that
the UPC/FPLC used children under the age of 15 to participate actively in hostilities,

including during battles. The children were also used, during the relevant period, as
soldiers and as bodyguards for senior officials, including the accused (id. 1355); and

based on the evidence of the various roles he played, Lubanga acted with the
intent and knowledge necessary to establish the charges (the mental element required
by Article 30 [of the Rome Statute]); was aware of the factual circumstances that
established the existence of the armed conflict; and was aware of the nexus between
those circumstances and his own conduct, which resulted in the enlistment,
conscription and use of children below the age of 15 to participate actively in hostilities
(id. 1356-1357).
The majority stated that it could not consider whether sexual violence may properly be
included within the scope of using [children under the age of 15] to participate actively
in hostilities as a matter of law, because the prosecutor did not present the relevant
facts in the charges. However, the majority indicated it would consider whether such
matters should be taken into account for purposes of sentencing and reparations. (Cole
& Askin, supra; Judgment, supra, 630-631.)
The Trial Chamber found that a non-international armed conflict took place in the DRC
at the time of the charges, amending the original legal characterization of the charges as
pertaining to an international armed conflict. (Cole & Askin, supra.)
The case will move to the sentencing and reparations phase; submissions must be filed
by April 18, 2012. The prosecution may seek a sentence close to the maximum, which
is up to 30 years of imprisonment, based on article 77(1)(a) of the Rome Statute, with
certain exceptions. (Id.) Lubanga has requested a separate sentencing hearing under the
Statute's article 76(2); he has the right to appeal his conviction within 30 days.
(Taglioli, supra.)
SECOND CASE
Two months after Kenyan President Uhuru Kenyatta reported to the
International Criminal Court where His Excellency stood accused of
committing Crimes Against Humanity in the post 2007 elections, the case
against Kenyatta has now collapsed.
On the 7th of October, Kenyan President Uhuru Kenyatta arrived at the International
Criminal Court (ICC) in The Hague, Netherlands. The President faced charges of crimes
against humanity under Article 7 of The Rome Statute of The International Criminal
Court for his alleged role in the post 2007 election violence which saw over 1000 people
dead and a reported 600,000 displaced. Although Kenyatta had previously appeared
before the court, this was the first time he did so as President, making him the first
defendant to stand before the Court whilst holding this position. This was also the first
time that a case had been brought before the ICC not through a States own request or
referral by the United Nations Security Council, but through the Prosecutors proprio
motu powers under Article 13 (c) of Rome Statute in which the Prosecutorcan open a
case into a member State . Under these unprecedented and unique circumstances,
Kenyatta chose to temporarily step down as President, and handed the reins of Office to
Vice President, William Ruto. The determination by the ICC to summon Kenyatta
speaks to the courts willingness to pursue their mandate to confront impunity. Yet the
case, which is now over before it even began, highlights the problems the institution
faces in pursuing this difficult task.

Co-operation between the Kenyan authorities and the court, particularly in the provision
of evidence was a prevalent issue throughout proceedings. ICC prosecutors
systematically accused the State of Kenya of refusing to provide the Court with crucial
pieces of evidence amongst which are bank statements, tax returns and phone record.
ICC prosecutor Ben Gumpert told judges that the records can collaborate witness
testimony that Kenyatta had approached them to finance or ultimately coordinate that
violence. He continued, criticising the Kenyan government of, not giving us what we
are asking for. In the statement of the Prosecutor of the International Criminal Court,
Fatou Bensouda strongly pressed that the collapse of this case was due to the lack of
cooperation by the Kenyan authorities in providing crucial evidence as well as witness
intimidation and interference. 1 The courts reliance on State cooperation for its
function-ability is theoretically a troubling one. Unfortunately, this case highlights that
this is also the case practically. To many, expecting an individual to provide information
that may be incriminating and pivotal to their conviction may sound preposterous. Yet it
is exactly within this framework that the ICC had to operate. To the extent that the
collapse of the case is based on this issue, it is difficult to imagine an instance in which
State leaders, who still retain power, can be held to account for crimes committed. The
outcome of this case is simply another indication of the uphill battle the court faces as
an international criminal court.
The case also added fuel to already strong sparks of anti ICC sentiments prevalent
within African States, namely for the criticism that the ICC singles out African States for
prosecution. In relation to Kenyattas summons, the African Union (AU) called for the
case to be transferred from the ICC to Kenyan courts. Coupled with the official stance of
the AU, which still calls on member States to implement a policy of non-compliance and
non-cooperation with the ICC, relations with the Court and African States are becoming
increasingly delicate.
At a special sitting of the Kenyan Parliament on Monday 6th of October, before he was
set to appear at the court, Kenyatta announced that he would be taking the
extraordinary and unprecedented step of invoking Article 134 of the Kenyan
constitution. This saw deputy president, William Ruto (who also faces charges of
crimes against humanity before the ICC) take temporary Presidency. Interestingly,
central to Kenyattas address was the capacity in which he would be attending the ICC.
In the address, Kenyatta stressed that he would be standing before the ICC in a personal
capacity as a necessary measure of protecting the sovereignty of the Kenyan State;
therefore, let it not be said that I am attending the Status Conference as the President
of the Republic of Kenya. Nothing in my position or my deeds as President warrants my
being in court. So, to all those who are concerned that my personal attendance of the
Status Conference compromises the sovereignty of our people, or sets a precedent for
the attendance of presidents before the court be reassured, this is not the case. In
essence, whether Kenyatta stood before the ICC in a personal or presidential capacity
would make no difference to proceedings. However, the recourse to the language of
sovereignty exemplifies the tone and attitude that has been propagated within Kenya;
that of Kenya against the ICC, with little consideration of the justice so desperately
needed by the victims.
Unfortunately, coverage and sentiment around the case has become rather political as
opposed to focusing upon the purpose of bringing perpetrators of heinous crimes to
account and enabling victim to have recourse to justice. In her statement, Fatou
Bensouda expressed solemn disappointment at the collapse of the case, particularly that
there would be no justice for victims. However, she continuously stated that there was

the possibility of bringing a new case should additional evidence become available.
In light of the humiliating implications wrought within this grand failure of the ICC, it is
likely that this is simply lip service. Notably, Vice President, William Rutos case is still
before the ICC where he stands accused of coming crimes against humanity. It will be
interesting to see the course the case takes. For the time being, whilst Kenyatta
celebrates and the ICC continues to navigate the increasingly tumultuous waters of law
and politics, it is unfortunate that in this case, it is the victims who really lose out.