1st September 2011

On Friday 26 August, the trial of Thomas Lubanga Dyilo at the International Criminal Court drew to a close. A military commander from eastern DRC, Lubanga was accused of using child soldiers during the time of his involvement with the Patriotic Forces for the Liberation of the Congo (FPLC), a section of the Union of the Congolese Patriots (UCP). Over five years ago, the ICC released a warrant for Lubanga’s arrest. Even after the initiation of proceedings in January 2009, the trial has been beset with difficulties. In June 2008, judges called for Lubanga to be released without any sanctions, criticising the prosecution for not disclosing enough of the evidence it possessed; similar problems were faced in July 2010. Although the trial was not closed in either of these instances, they are symptomatic of the delays and setbacks that have characterised this case. It was perhaps as a result of this that on Friday Judge Fulford promised a verdict “within a reasonable period of time”, rather than specifying a date.

Over the final two days of the trial, there were dramatic exchanges between the prosecution and the defence as they gave their closing statements. On Thursday, Deputy Prosecutor Fatou Bensouda said to the judges that Lubanga’s guilt had been shown not just beyond reasonable doubt “but beyond any possible doubt”, and added that the prosecution had been representing those children who the accused had “transformed into killers”. For two hours, victims related their experiences to the court. For Benjamin Ferencz, previously a Nuremburg prosecutor and currently special counsel to the prosecutor’s office, the case stood as a “plea of humanity to law”. Lashing back at such statements on Friday, however, the Lead Defence Attorney Catherine Mabille charged the prosecution with “serious dysfunction”. She claimed that the nine, young witnesses that had testified against Lubanga had been lying about being involved with the FPLC as child soldiers; apparently, school records showed they had been in education during the time when they said they had been under military juress. She contended they may have hoped to gain schooling opportunities, financial aid or other benefits by giving false testimony. She also alleged that court intermediates “had been asked to lie”. Co-defense counsel Jean-Marie Biju-Duval then argued that Lubanga had not had “effective control” over troops, and that his efforts in internal communications to demobilise child soldiers were, despite prosecution claims, genuine.

This trial has implications beyond the fate of a single military commander. The ICC began functioning in 2002 and is the first long-term, global court in place to try individuals charged with crimes against humanity, war crimes and genocide. The Lubanga proceedings represent the first case to have passed through the court and the world will be awaiting the jury’s verdict, expected at the beginning of 2012. Fadi El-Adballah, a spokesman for the ICC, called the trial “very important”, given that “it [was] with this that the ICC began to build its case law and interpretation of its rules of procedure and evidence”. If the case has revealed the wider difficulties associated with prosecuting international offences, such as issues surrounding how the ICC engages with intermediaries and how crimes are defined, there has been a noticeable growth in the respect for the court since the Lubanga proceedings began. At this point, it is trying two other military leaders from the eastern Congo (Germain Katanga and Mathieu Ngudjolo), has been asked by UN Security to consider circumstances in Libya, and is pushing for the trial of Sudan’s leader, Omar al-Bashir, who stands accused of war crimes and genocide in Darfur.