Chapter 4: The ICC‟s contribution to war crimes trials in the DRC
4.4 ICC Prosecution of war crimes launched in the DRC
4.4.2 The Thomas Lubanga Dyilo Case
The case will first be presented, then the state of its process will be examined and lastly, the case will be assessed.
417 B Kabatu-Suila L’Instabilité institutionnelle, frein au développement (2004) passim.
418 A Mbata (note 14 above; 249).
419 See Global and all Inclusive Accord V (1), (A), (B), (C).
420 Prosecutor receives referral of the situation in the Democratic Republic of Congo available at http://www.icc-
cpi.int/menus/icc/press%20and%20media/press%20releases/2004/prosecutor%20receives%20referral
%20of%20the%20situation%20in%20the%20democratic%20republic%20of%20congo?lan=en-GB, accessed on 12 June 2011.
421 W W Burke-White (note 1 above; 105-106).
422 M Du Plessis „International Criminals Court and its work in Africa confronting the myths‟ (2008) (ISS Paper 173) 11 available at http://www.iss.co.za/uploads/PAPER173.PDF, accessed on 17 July 2011.
4.4.2.1 Presentation
Born in Jiba on 29 December 196O, Thomas Lubanga Dyilo is a native of the DRC.
He is from the Ituri District in Oriental Province.423
Alleged founder of the UPC= Union des Patriotes Congolais (the Congolese Patriot Union) and the FPLC = Forces Patriotiques pour la Libération du Congo (Patriotic Forces for the Liberation of Congo),424 he is being prosecuted by the ICC for being responsible425 for the following war crimes provided for in the Rome Statute:
“conscripting or enlisting children under the age of fifteen years into the national armed forces or using them to participate actively in hostility”.426
In concrete terms, he is alleged to have enlisted and conscripted minors into the armed groups cited above and involved them in the hostilities between September 2002 and June 2003 during the armed conflict of an international character, and between June 2003 and August 2003 during internal armed conflict.427
4.4.2.2 State of the process
After the ICC Prosecutor requested for a warrant of arrest against Thomas Lubanga Dyilo on 12 January 2006, a warrant of arrest was issued on 10 February 2006 by the Court, which requested the DRC to ensure the arrest and surrender of Thomas Lubanga Dyilo on 24 February 2006.428 He was arrested on 17 March in DRC and finally surrendered to the ICC in The Hague where he is currently in detention.429
423 Under seal Warrant of arrest for Thomas Lubanga Dyilo No.: ICC-01/04-01/06 issued on 10 February 2006 available at http://www.icc-cpi.int/iccdocs/doc/doc191959.PDF, accessed on 10 August 2011.
424 „Situation in the Democratic Republic of the Congo‟ available at http://www.icc-
cpi.int/Menus/ICC/Situations+and+Cases/Situations/Situation+ICC+0104/, accessed on 10 May 2011.
425 Under Article 25 (3) (a) of the Rome Statute.
426 See Article 8 (2) (b) (xxvi) or 8 (2) (e) (vii) of the Rome Statute ; Under seal Warrant of arrest for Thomas Lubanga Dyilo (note 423 above).
427 Prosecutor v Thomas Lubanga Dyilo, Decision on the confirmation of charges (note 61 above) para 410 available at http://www.icc-cpi.int/iccdocs/doc/doc266175.PDF, accessed on 10 June 2011.
428 Prosecutor v Thomas Lubanga Dyilo (note 427 above; para 15, 16.)
429 See Court‟s Detention Center in The Hague Center; Prosecutor v Thomas Lubanga Dyilo (note 427 above; para 16).
The Chamber heard Lubanga Dyilo‟s case on 20 March 2006. During the hearing “the chamber satisfied itself that he had been informed of the crimes which he is alleged to have been committed and of his rights. At that hearing, the Chamber announced that the confirmation hearing would be held on 27 June 2006”.430
On 2 August, 15 and 20 September, and 4 October 2006, the Chamber rendered four decisions on applications concerning redactions and summary evidence filed by the Prosecutor pursuant to rule 81 of the Rules.
On 29 January 2007, the Pre-Trial Chamber confirmed431 charges of war crimes against Thomas Lubanga Dyilo and on 4 September 2007 the case was filed in the Trial Chamber I for hearing.432 However, in order to ensure a fair trial, on 11 May 2010 the Prosecutor was requested by the Trial Chamber to reveal to Thomas Lubanga Dyilo the details related to intermediary 143, insofar as he will be under the protection of suitable measures.433
After review of those measures and due to implementation delays, finally on 7 July 2010, given that more protective measures had been taken, the Trial Chamber repeated its orders to the Prosecutor to disclose, within half-an-hour the identity of intermediary 143 under restrictive conditions which it deems sufficient to protect the intermediary. The Prosecutor did not disclose the identity of intermediary 143 within this time-limit434 and the Trial Chamber decided to stop proceedings on 8 July.435 A few days later on 15 July, The Chamber granted the Prosecutor leave to appeal the decision staying proceedings. It also ordered the release of Lubanga Dyilo.436 However, this decision of the Trial Chamber was reversed on October 2010 by the Decision of Appeal Chamber.437
430 Ibidem para 17.
431 Prosecutor v Thomas Lubanga Dyilo (note 427 above) para 410.
432 Prosecutor v Thomas Lubanga Dyilo No: ICC 01/ 04-01/06 ( Trail Chamber I), 04 September 2007 available at http://www.icc-cpi.int/iccdocs/doc/doc342296.PDF, accessed on 10 June 2011.
433Prosecutor v Thomas Lubanga Dyilo, ICC- 01/ 04-01/06 (Appeals Chamber) 8 October 2010 available at http://www.icc-cpi.int/iccdocs/doc/doc948677.pdf, accessed on 17 July 2011.
434 Ibidem para (3) 17-20.
435 Ibidem (3) 24-25; (4) 12.
436 Ibidem (4) 19-20.
437 Ibidem (9) 10-11.
The Trial has entered its final stages following the hearing of closing statements that took place on 25 and 26 August 2011.438
4.4.2.3 Assessment
This is the first trial relating to the DRC; it is therefore of the utmost importance in terms of case law for trials to come. Currently the process before the Trial Chamber is almost at an end; the different parties have made their pleadings and are waiting for the deliberations and judgment of the Trial Chamber.439