Called “a victory for humanity” by Prosecutor Luis Moreno-Ocampo, the conviction of Thomas Lubanga Dyilo of conscripting and enlisting child soldiers and using them to participate actively in hostilities, which came hot on the heels of the viral Kony 2012 campaign, puts this war crime firmly on the global map. Yet, the trial was mired in numerous problems: proceedings were stayed twice due to the Prosecutor’s failure to disclose potentially exculpatory evidence due to confidentiality concerns and because of issues relating to the role of intermediaries used by the prosecution to contact witnesses. Indeed a substantial part of the judgment addresses this use of intermediaries and the risk that some of these intermediaries persuaded, encouraged or assisted witnesses to give false evidence. This resulted in the Chamber’s findings that evidence by a number of witnesses could not be safely relied on.
But aside from grappling with procedural problems, the Lubanga judgment also provides important clarification on substantive provisions of the Rome Statute. It confirmed that the crimes of conscripting or enlisting a child under the age of 15 are committed at the moment the child is incorporated into an armed force or group “with or without compulsion” (para. 618) and that a child’s consent can never amount to a valid defence for the accused. However, the manner in which a child was recruited may be taken into consideration at the sentencing or reparations phases (para. 617). Thus, the fact that a child volunteered to join an armed force or group cannot absolve a recruiter of responsibility, but might be used to mitigate his punishment.
The Trial Chamber also considered the meaning of “use [of children] to participate actively in hostilities” and confirmed that this was a separate offence which could be proved without evidence being provided as to earlier conscription or enlistment (para. 620). But the meaning of the phrase resulted in a dispute between the majority of the Trial Chamber and Judge Odio Benito, who issued a separate and dissenting opinion. The majority did not find it necessary to provide a definition of “active participation”, considering that it could only be determined on a case-by-case basis given the wide range of roles performed by children both on the front line (direct participation) and in supportive roles (indirect participation). The relevant question to be addressed when deciding whether an ‘indirect’ role could amount to active participation was “whether support provided by the child to the combatants exposed him or her to real danger as a potential target” (para. 628). However, as raised by Judge Odio Benito in her separate opinion, the risk to children is not only from the enemy as a potential target, but also from members of the armed group into which they were recruited. Indeed, media and NGO reports on child soldiers often refer to them being beaten, brutalised and forced into sexual slavery; all at the hands of their own group members.
Judge Odio Benito specifically refers to sexual violence. This had been a contentious issue throughout the trial, many critics arguing that the charges brought against Lubanga were too narrow, given the widespread allegations of sexual violence. The issue of sexual violence had been referred to by the prosecution in its opening and closing submissions and had been raised during testimony by a number of victims and witnesses. In fact, the legal representatives of victims had also requested a re-characterisation of the facts to include charges of sexual violence. However, such charges had not been brought against Lubanga. The majority of the Trial Chamber thus concluded that it could not consider the evidence relating to sexual violence nor make any finding as to whether sexual violence could properly be included within the definition of active participation as a matter of law (para. 630). Judge Odio Benito stated that this approach by the majority was “making this critical aspect of the crime invisible” (para. 16) and that sexual violence was an “intrinsic element” of this offence (para. 20). Whether sexual violence should come within the definition of active participation or whether this would be stretching the legal meaning of this concept is a question for another day. It does, however, illustrate the frustrations felt both within the Trial Chamber as well as outside as to the scope of this first, and important, trial.