By Alison Cole
The International Criminal Court (ICC) has issued its first appellate decision in the case against Thomas Lubanga, upholding his conviction and sentence for war crimes relating to child soldiers. However, a strong dissent was issued by Judge Anita Ušacka, who stated that she would have reversed the conviction and acquitted Mr. Lubanga, vacating his sentence.
The majority appellate decision relied upon the law regulating appeals to find that the trial chamber overall had not acted beyond the limits of its discretion. The appeals judges found that the trial chamber’s conviction and sentence were within the bounds of a reasonable arbiter of fact. The appeals judges also affirmed that the accused charged as a co-perpetrator need not “personally directly” commit the alleged acts but that a crime must be “virtually certain” to follow from the common purpose with other co-perpetrators.
Judge Ušacka based her dissent on two grounds. First, she found that the charges lacked specificity and thereby did not provide Mr. Lubanga with enough notice to prepare his defense. She found that this violated his right to a fair trial.
Timeline Thomas Lubanga
Photo: Thomas Lubanga in 2003 (José Carlos Rodríguez Soto/ICC Flickr)
April 19, 2004
Joseph Kabila, President of the Democratic Republic of Congo, refers the situation to the ICC concerning crimes committed throughout the DRC.
June 23, 2004
ICC Prosecutor, Luuis Moreno Ocampo, announces the launch of investigations into crimes committed in the DRC.
February 10, 2006
Pre-Trial Chamber I issues an arrest warrant for Thomas Lubanga Dyilo.
March 16, 2006
Lubanga is transferred to the ICC in The Hague, the Netherlands.
Photo: Thomas LUbanga at the ICC (ICC Flickr)
January 29, 2007
Pre-Trial Chamber I decides there is sufficient evidence to proceed to trial on three counts of war crimes (enlistment of children under the age of fifteen, conscription of children under the age of fifteen, and use of children under the age of fifteen to actively participate in hostilities).
June 13, 2008
Trial Chamber I imposes a stay on the proceedings after finding that the prosecutor is incorrectly using confidential documents as evidence in the trial, and that the defence has therefore not received evidence that might help their side of the case.
July 2, 2008
Trial Chamber I grants the release of Lubanga, arguing that release is a logical consequence of the stay of the proceedings that would not allow for the accused to obtain a fair trial.
October 21, 2008
The ICC Appeals Chamber reverses the trial chamber’s decision to release Lubanga and sends the matter back to the trial chamber.
January 26, 2009
Lubanga’s trial commences before Trial Chamber I and becomes the ICC’s first case.
July 14, 2009
The prosecution concludes the presentation of its case. The Prosecution calls 28 witnesses to testify.
July 8, 2010
Trial Chamber I again orders an indefinite stay of the proceedings against Lubanga after the prosecution refuses to obey an order to disclose the identity of an intermediary used by the prosecution to contact witnesses. The defence claimed that this intermediary had coached and bribed witnesses. The court issues a formal warning to the ICC prosecutors for refusing to implement the chamber’s orders.
July 15, 2010
The court again orders Lubanga’s release from detention.
October 8, 2010
The Appeals Chamber reverses the trial chamber’s decision to stay the proceedings and release Lubanga. The Appeals Chamber argues that the trial chamber made a mistake when it imposed stay of the proceeding without first imposing sanctions on the prosecutor for failure to comply with the chamber’s orders.
Photo: Child soldiers serving for Thomas Lubanga (Skylight Pictures)
March 14, 2012
The Court finds Lubanga guilty of committing war crimes, as co-perpetrator, by enlisting and conscripting children under the age of fifteen.
December 3, 2012
Lubanga files an appeal against his conviction, his 14-year-prison sentence, and the principles handed down by trial judges for determining reparations to victims. The prosecution also files an appeal, asking the Appeals Chamber to increase Lubanga’s prison term.
May 19-20, 2014
An appeals hearing is held at the ICC. Appeals Chamber judges heard testimony of two of Lubanga’s former bodyguards, who said they were not child soldiers when they joined his militia. Lubanga also makes an unsworn statement.
Read about the background to the Lubanga case.