How did the ICC prosecutor investigate and arrest Lubanga?

Former ICC Prosecutor Luis Moreno Ocampo started an investigation into crimes in the DRC in June 2004. He issued a warrant for Lubanga’s arrest in January 2006 in connection with Lubanga’s alleged responsibility for the war crime of conscripting, enlisting, and using child soldiers under the age of 15 to further the war in the DRC’s Ituri district during 2002 and 2003.

Lubanga was arrested in March 2005 and transferred from the DRC to the ICC a year later, in March 2006. In January 2007, the ICC’s Pre-Trial Chamber I confirmed the charges against him, deciding enough evidence existed to justify a trial. Delays plagued the start of the trial, but it was eventually scheduled to begin on June 23, 2008.

Why was the trial delayed?

Ten days before the trial was supposed to start, the ICC’s Trial Chamber halted Lubanga’s trial because they were concerned his trial would not be fair. A fair trial requires that any person accused of a crime have access to “exculpatory information,” or information that might help prove his innocence. The prosecutor is required to disclose any exculpatory information he has collected, so that the accused person can properly prepare his defense.

In Lubanga’s case, the prosecutor had not disclosed all the exculpatory information. He had kept to himself more than 200 documents—some of which contained potentially exculpatory evidence—which had been collected with the help of other organizations, including the United Nations and nongovernment organizations. He had not shared these documents because he had entered into confidentiality agreements with these organizations under a special provision in the ICC’s founding document, the Rome Statute (Article 54(3)(e)). This provision is intended to facilitate the prosecutor’s investigation by encouraging third parties to provide information for the purpose of generating new evidence—evidence that may not be disclosed absent the third party’s consent. This need for confidentiality was in part due to security concerns of these organizations, which feared for the safety of people who had given the information if their identities were revealed in documents handed to Lubanga’s defense lawyers.

However, the judges thought that the prosecutor had not correctly entered into those confidentiality agreements, which meant that at least some documents which should have been available to Lubanga were not even able to be examined by the judges who would determine whether they should in fact be given to Lubanga and his lawyers. The judges decided that the prosecutor’s inability to share the documents with the Trial Chamber and the judges’ resulting inability to work out whether and how that affected Lubanga’s rights, meant that “the trial process has been ruptured to such a degree that it is now impossible to piece together the constituent elements of a fair trial.” The Trial Chamber decided to suspend the trial. On July 2, 2008, the judges further ruled that Lubanga should be set free because they thought there was no chance he could get a fair trial.

Why wasn’t Lubanga set free?

The prosecutor responded with two key efforts to keep the trial on track. One was to ask the Trial Chamber to lift the suspension of the trial, and the other was to ask the Appeals Chamber to ensure that Lubanga did not go free.

On September 3, 2008, Trial Chamber I rejected the prosecutor’s plea to lift the stay, because the judges decided that the problem affecting Lubanga’s fair trial rights still hadn’t been fixed. The prosecutor had not secured guarantees from the organizations with confidentiality agreements which would allow the judges to see all the relevant documents. Nor had he made sure that the judges would have access to the documents throughout the course of Lubanga’s trial, to make sure Lubanga’s fair trial rights were being protected. The partial fix that the prosecutor had proposed would still, according to the judges, “infringe fundamental aspects of the accused’s right to a fair trial.”

Meanwhile, the prosecutor had swiftly appealed the July 2, 2008, decision by the Trial Chamber to set Lubanga free. This meant that Lubanga had to remain in jail while the appeal was being decided. On October 21, 2008, the Appeals Chamber decided to maintain the trial’s suspension, but to keep Lubanga in jail.

Why could the trial proceed?

Finally, on November 18, 2008, the judges agreed that the prosecutor had taken all the steps he needed to in order for Lubanga to get a fair trial. This also meant that any documents handed to the defense would be disclosed in a way that was mindful of the information providers’ safety. The judges lifted the stay to allow the trial to go ahead.  The trial was then scheduled to start on January 26, 2009.

Why was the trial delayed a second time?

In July 2010, judges ordered a second stay of proceedings in the trial of Thomas Lubanga and ordered his immediate release from ICC detention when prosecutors refused to honor an order by trial judges to disclose to the defense the identity of an intermediary, who had helped prosecution investigators contact witnesses. The order was prompted by defense claims that prosecution intermediaries bribed and coached witnesses to provide false testimony to court. The prosecution immediately appealed the decision of the Trial Chamber on the stay of proceedings and release of Lubanga. Prosecutor Luis Moreno Ocampo argued that if the identity of the intermediary were disclosed before protective measures, such as relocation, were put in place for him, the individual would have been at risk of reprisal attacks from Mr. Lubanga’s supporters.

It was not until October 8, 2010 when the Appeals Chamber ruled that the Trial Chamber erred when it stayed the proceedings without first imposing sanctions against the prosecutor following his failure to comply with the Trial Chamber’s orders. They said sanctions were a key tool for chambers to maintain control of proceedings within the trial framework and to safeguard a fair trial without having recourse to the remedy of staying proceedings. The decision to reverse the stay of proceedings also necessitated the reversal of the release order. Thus, Lubanga remained in detention, and the trial restarted on October 25, 2010.

What were the major issues at the trial?

There are a number of issues which have been prominent in the trial and some of which are likely to remain in focus as the trial progresses.

Abuse of process

A key issue that has been raised during the trial is the alleged abuse of process in collecting evidence and putting together the witnesses who have testified against Lubanga. The defense called witnesses, who provided testimony as to how evidence was fabricated, and then ask judges to throw out the case on the grounds of abuse of process. In December 2010, the defense filed a submission that accused the prosecution of rendering a fair trial impossible due to serious prejudice to the judicial process. The defense arguments addressed five main elements: 1) the role of four intermediaries; 2) the prosecutor’s negligence in failing to properly investigate evidence he introduced which, at least in part, was erroneous or mendacious; 3) the prosecutor’s deliberate failure to discharge his disclosure and inspection obligations; 4) the part played by certain participating victims; 5) failure on the prosecutor’s part to act fairly and impartially.

The prosecution has denied that there was any abuse of process and vigorously contested this charge by the defense, and on February 23, 2011, the Trial Chamber judges denied the defense request to permanently stay the trial for abuse of process. However, this issue is not yet concluded. In the final judgment reached after all evidence has been presented and closing arguments made, the Trial Chamber could still decide that the prosecution abused the process in certain particulars. If it has, the chamber must still decide whether and to what extent it has an impact on the evidence.

Role of intermediaries

A related issue that is likely to stay in focus is the role of the intermediaries of ICC prosecution investigators. Various defense witnesses have implicated them in fabricating and corrupting evidence. Indeed, it can be said that the alleged incidences of abuse of process which the defense has said are ground to have judges consider halting the case have been placed squarely by all defense witnesses heard in public at the feet of intermediaries rather than officials of the Office of The Prosecutor (OTP) or other organs of the ICC.

So much has been said by defense witnesses about intermediaries that judges asked the OTP whether it was considering putting some of them to the witness stand. Judges also ruled that in view of evidence heard about the role played by one particular intermediary, the defense were entitled to knowing his identity.

Was Mr. Lubanga in charge of UPC’s military affairs?

The other issue that could be critical is whether Lubanga was in charge of the military affairs of UPC/FPLC. According to Mr. Moreno-Ocampo’s opening statement, Mr. Lubanga is the alleged founder of UPC and of FPLC. The ICC prosecutor also charges that Lubanga was the commander-in-chief of the FPLC, since September 2002 and at least until the end of 2003. The prosecution also alleges that Lubanga ordered and supervised the recruitment of child soldiers in his militia.

The defense contests these claims, and has promised to tender evidence to the effect that “Thomas Lubanga the political leader played no active role in the creation of the UPC military forces and in no way did he take part deliberately in a common plan to recruit minors.”

Knowledge and responsibility

Were child soldiers in UPC/FPLC enlisted or recruited? Lubanga’s defense has denied that he enlisted or used child soldiers. Instead, the defense argues that Lubanga opposed the enlistment and use of child fighters. According to several prosecution witnesses, the UPC/FPLC conscripted children, some of them right out of their primary schools. Some of the prosecution witnesses recounted in court how they were abducted, conscripted, trained under inhumane conditions at the UPC’s military camps, and were then forced to take part in fighting.

But a different story has been heard from the defense. First, the defense has submitted that all prosecution witnesses who claimed to have been child soldiers in the UPC were bogus. Second, the defense has indicated that it does not intend to show that there were no minors among the ranks of the FPLC. Instead, it plans to answer questions such as whether Lubanga initiated the recruitment of minors into the UPC forces, whether he helped to recruit minors in one way or another, and what his attitude was to the presence of minors among the UPC troops.

The defense has argued that many children volunteered to join the armed group because they wanted to be like their age-mates who were soldiers and routinely extorted money from civilians, or because they had nothing better to do in light of the war situation. Other witnesses – including experts called by prosecutors and by the chamber – suggested that children in an ethnically-motivated war might be forced by their families or community elders to join armed groups so as to defend their communities and to guard against ostracization.

In submitting that Lubanga did not take part in recruiting any minors, and that when he had the powers he endeavored to demobilize child soldiers, the defense is attempting to get Lubanga off the three charges of recruiting, conscripting, and using child soldiers.

What was the judgment and sentence handed down to Lubanga? 

On March 14, 2012, Trial Chamber I convicted Lubanga of three counts of war crimes for conscripting, enlisting, and using child soldiers. In doing so, judges found that he was the president of the UPC militia in the eastern region of the Democratic Republic of Congo during a non-international armed conflict from September 2002 to August 14, 2003.

On July 10, 2012, judges sentenced Lubanga to 14 years in prison. Both the conviction and sentence were upheld on appeal on December 1 , 2014.

What reparations were issued? 

On August 7, 2012, Trial Chamber I issued a decision establishing principles and procedures to be applied to reparations, which was appealed by both the defense and lawyers representing victims participating in the case.  In March 2015, the Appeals Chamber amended this original decision and also instructed the Trust Fund for Victims (TFV)  to submit: (1) a list of victims potentially eligible for reparation; (2) an assessment of the extent of the harm suffered by victims; (3) proposals regarding the modalities and forms of reparation to be awarded;  (4) the anticipated amount corresponding to Lubanga’s liability for the harm suffered by victims; and (5) the amount that the TFV would potentially advance from its own funds collected through voluntary contributions.

The TFV submitted its plan for reparations in November 2015, however, it was rejected by a newly constituted Trial Chamber II because it did not comply with the requirements set by the Appeals Chamber. After further submissions by the TFV, on October 21, 2016, the chamber approved a plan for symbolic collective reparations that includes building commemorative structures, psychosocial support, and livelihood support.

In December 2017, judges declared Lubanga’s personal financial responsibility for reparations amounts to US$ 10 million. In coming to this figure, judges assessed the harm suffered by 427 persons recognized as victims of Lubanga at US$ 3.4 million. Separately, taking into account the proportion to the harm caused and Lubanga’s participation in the commission of the crimes, judges assessed his liability at US$ 6.6 million. Lubanga is appealing this decision.

On July 18, 2019, the amount of reparations was confirmed on appeal.

What is the background to the conflict in Ituri?

Often described as the DRC’s bloodiest corner, Ituri has long been the site of ethnic disputes between the Hema and the Lendu communities. The fighting initially stemmed from localized land conflicts between the two ethnic groups, dating back to the Belgian rule over Congo in the late-nineteenth century and intensifying in 1994 when the disputes became intertwined with the Hutu-led genocide of Tutsis in neighboring Rwanda.

In neighboring Zaire (now the DRC), President Mobutu Sese Seko’s three-decade dictatorship resulted in the gradual erosion of all state institutions and widespread discontent throughout the country. In 1996, the Alliance of Democratic Forces for the Liberation of Congo (AFDL), an armed rebel group, largely backed by Rwanda and Uganda, took control of Zaire and changed the country’s name to the Democratic Republic of Congo. In 1997, Laurent Kabila, AFDL’s leader, declared himself president.

Once in power, Kabila quickly turned on his former allies. Feeling increasingly threatened, Rwanda and Uganda aligned to engender a new rebel movement led by Congolese Tutsis, known as Banyamulenge. Kabila enjoyed increasing support from Zimbabwe, Angola, Burundi, and anti-Tutsi Congolese militias, Mai-Mai. Violent clashes between the two sides broke out between 1998 and 2002, becoming popularized throughout international media as “Africa’s first world war.”

The region’s rich natural resources largely fueled the conflicts and the international involvement therein. Driven by a desire to gain control of the region’s gold, diamonds, and timber resources, direct clashes between Ugandan and Rwandan militaries frequently occurred throughout Ituri and the larger region. As the conflict intensified, the Lendu began to identify with the Hutu, and the Hema with the Tutsi, exacerbating the longstanding conflict between the Lendu and Hema ethnic groups.

Despite UN involvement and the warring sides signing the Sun City peace agreement in April 2002, the fighting intensified, with the renewed attacks reinforcing the conflict’s underlying ethnic character. In August 2002, the UPC militia, together with the Ugandan army, launched an offensive to control Bunia, the main town in Ituri, deliberately killing Lendu, Nande, and Bira civilians throughout the attack. From August 2002 to March 2003, the UPC controlled Bunia, forming a Hema-controlled government under Thomas Lubanga, the leader of the UPC. After establishing its hold over Bunia, the UPC moved south to attack Songolo, killing approximately 100 citizens. In November 2002, the UPC attacked the gold mining town of Mongbwalu, where UPC combatants targeted and killed an estimated 200 Lendu civilians. Following the Mongbwalu offensive, UPC forces attacked Kilo, where they forced civilians presumed to be Lendu to dig their own graves before killing them. Described as an “army of children,” the UPC forcibly recruited children as young as seven, including girls, for military service.

In June 2003, a French-led European Union peacekeeping force intervened to halt the fighting. In September 2003, the United Nations Organization Mission in the Democratic Republic of Congo (MONUC) assumed peacekeeping responsibilities in Ituri.

The 1998-2003 war destroyed the institutional means to resolve these tensions peacefully. The conflicts dislocated many communities and resulted in a collapsed justice system, limiting the potential of traditional conflict-resolution mechanisms. The absence of the rule of law perpetuated the overall culture of impunity.

The ICC opened its investigation into the Congo in 2004 after a referral from President Joseph Kabila. Besides Lubanga, the ICC issued arrest warrants against three rebel leaders in relation to crimes committed in the Ituri region: Bosco Ntaganda of the FPLC , Mathieu Ngudjolo of the Nationalist and Integrationist Front (FNI), and Germain Katanga of the Patriotic Resistance Front in Ituri (FRPI). The ICC acquitted Ngudjolo in December 2012. In March 2014, the ICC found Katanga guilty of war crimes and crimes against humanity stemming from a February 2003 attack on civilians in Ituri, and on June 9, 2014, Pre-Trial Chamber II unanimously confirmed charges against Ntaganda and committed the case to trial.